Catch and Release – Applying Section 151A
Gundelj v Brighton Australia Pty Limited [2021] NSWPICPD 28
The Appellant had previously received compensation for 3% hearing loss sustained prior to his employment with the Respondent. He then sustained low back, neck and shoulder injuries on 31 July 2012 in the course of his employment with the Respondent.
A Medical Assessment Certificate was issued on 28 January 2016 assessing 15% WPI in respect of his low back, neck and shoulder injuries. On 26 May 2016, the Appellant notified an intention to pursue a claim for work injury damages in respect of the above injuries, as well as consequential Depression and Anxiety (but not further hearing loss).
A Deed of Release was executed on 30 January 2017 in respect of the Appellant’s work injury damages claim, at which time he had not been paid permanent impairment compensation in respect of any further hearing loss.
WCC proceedings
In 2020, the Appellant filed an ARD claiming compensation for 12% WPI and the costs of hearing aids attributable to further hearing loss caused by exposure to loud noise during his employment with the Respondent.
The Respondent asserted that the Appellant was not entitled to compensation by virtue of Section 151A(1) of the Workers Compensation Act 1987 (1987 Act), relying upon the terms of the Deed of Release.
The Arbitrator rejected the Appellant’s submission that the Deed was inconsistent with Section 234 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) prohibiting contracting out from that Act and the 1987 Act. The Arbitrator also rejected the submission that the Appellant’s further hearing loss was a “latent injury” and accepted that, by its very wording, the Deed extended to any injury arising from the nature and conditions of his employment (including any further loss of hearing).
By consent of the parties, a Certificate of Determination was issued on 21 January 2021 amending the date of injury to 16 December 2014, changing the injury to “further loss of hearing as a result of exposure to loud noise” however providing for an Award for the Respondent.
Grounds of Appeal
The Appellant filed an Appeal against the Arbitrator’s reasons and asserted that:
- The Arbitrator erred in law in finding that, pursuant to the Deed, the Appellant had received work injury damages in respect of a hearing loss injury suffered in the course of his employment with the Respondent, notwithstanding that the requirements for the making of a work injury damages claim had not been complied with.
- The Arbitrator erred in law in determining that the Appellant’s failure to comply with the statutory requirements stipulated in the 1998 Act (in particular Section 280A) and the 1987 Act relating to a claim for work injury damages were of a procedural nature and did not prevent him from recovering damages (in respect of further hearing loss) in circumstances where the Respondent did not take issue with that failure.
- As a result of the finding that the requirements for making of a work injury damages claim in respect of hearing loss had not been complied with, the Arbitrator should have found that the Appellant had not received damages in respect of his hearing loss.
- Regardless of the Appellant’s failure to comply with the requirements relating to a claim for work injury damages, the Arbitrator should have found that the Deed was in breach of Section 234 of the 1998 Act insofar as it referred to an injury to the low back, neck and shoulders.
The Appellant further asserted that he had claimed work injury damages only in respect of an injury to the back, neck and shoulder that he sustained on 31 July 2012 and that there was no claim for hearing loss.
Presidential Decision
Acting Deputy President (DP) Parker SC cited the decision in Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326 in finding that a failure to comply with the procedural requirements of workers compensation legislation was not fatal to a claim for work injury damages.
The Acting DP noted that the Deed applied to various injuries sustained during the Appellant’s employment with the Respondent between 30 July 2012 and 16 December 2014, with the latter date representing the deemed date of injury of his claimed further hearing loss. He also noted that the Appellant did not challenge the Arbitrator’s construction of the Deed, which included “any injury arising from the nature and conditions of his employment… that affected the function of his hearing organs”. The Acting DP therefore found that the Appellant had received damages in respect of hearing loss and his claim for further hearing loss was precluded by Section 151A of the 1987 Act.
Ultimately, Acting DP Parker SC dismissed the Appeal and confirmed the Certificate of Determination dated 21 January 2021.
Implications
The decision of Acting DP Parker SC confirmed that the recovery of damages by a worker in respect of an injury pursuant to a Deed of Release can preclude any further entitlement to compensation, despite the fact that no previous claim for lump sum compensation was made in respect of that injury.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
