Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 Hearing dates: 20 June 2014 Decision date: 22 December 2014 Before: McColl JA at [1] Basten JA at [96] Beech-Jones J at [123] Decision: (1) Grant leave to appeal to the extent necessary to vary the answers given by the Commission to the following:

Q1 Do the amendments to Div 4, Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?

Ans A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.

Q2 If yes [to question 1], whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker's claim exceeds the s 66(1) threshold?

Ans The scope of the injury involving hearing loss should be determined by applying s 17 of the Workers Compensation Act. A second claim with respect to "an injury", being the loss of hearing which had arisen before, and was the subject of, a prior claim, whether made before or after 19 June 2012, is prevented by s 66(1A). Section 66(1A) would not preclude a claim for a further loss of hearing, post-dating the prior claim, being a further injury. The question is not capable of further answer.