VICTORIAN WORKCOVER AUTHORITY v DEL BORGO and Others

9 VR 470·Winneke P, Ormiston and Eames JJA
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9 VR 470
9 VR 470
VICTORIAN WORKCOVER AUTHORITY v DEL BORGO and Others Court of Appeal Winneke P, Ormiston and Eames JJA 31 March, 1 April, 11 June 2004 [2004] VSCA 108 Accident compensation — Workers compensation — Industrial deafness — Cumulative injuries — Award of compensation under 1958 Act table of maims — Continuing employment in same environment — Amendment of legislation in 1994 — New compensation entitlement based on whole-person impairment — Imposition of threshold requirement of 7% binaural loss — Threshold increased to 10% in 1997 — Further industrial deafness — Subsequent claim for compensation — Assessment of whole-person impairment arising from consecutive injuries — Roles of medical panel and Victorian WorkCover Authority in decision-making process — Whether threshold applicable to each subsequent compensation claim or confined to initial claim — Strong competing arguments as to proper construction of legislation — Anomalies on both sides of construction dispute — Worker’s construction preferred — Extraneous material used as aid to resolving construction dispute — Accident Compensation Act 1985 (No 10191) ss 5, 82, 88, 89, 90, 91, 98, 98C, 104B(9).. In 1994, the entitlement to percentage-based compensation for work-related hearing loss as set out in the so-called table of maims in s 98 of the Accident Compensation Act 1985 was amended. When introducing the amending Bill in 1994, the responsible minister informed the Parliament that the amendments were made necessary by the high cost of processing a large increase in claims most of which were for relatively minor degrees of hearing loss. The minister stated that in order to deal with “these burgeoning problems and preserve compensation for those with a significant work-related hearing loss the Bill introduces a threshold of 7 per cent loss of binaural hearing before a table of maims payment under section 98 of the Act becomes payable”. A new subs (2AA) was inserted in s 98 which provided that: “Compensation is not payable under this section unless the percentage of the diminution of hearing determined in accordance with sub-section (2AB) is at least 7.” Subsection (2AB), introduced at the same time, provided that the percentage of the diminution of hearing was to be assessed by reference to the National Acoustic Laboratory (NAL) standards.Following further amending legislation in 1997 increasing the s 98 entitlement threshold to 10%, s 91(3) and (4) of the Act provided as follows:

“(3) For the purposes of assessing the degree of impairment of the whole person resulting from binaural hearing impairment, the percentage of the diminution of hearing determined in accordance with sub-section (4) is to be converted as follows —

  • •if the binaural loss of hearing is less than 10 per cent NAL, the degree of impairment is zero;
  • •if the binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10 per cent;
  • •if the binaural loss of hearing is more than 10 per cent NAL, the degree of impairment is the percentage equivalent of the number (rounded up to the next whole number) given by the formula —10 + [0.278 (NAL – 101)] —
where NAL is the percentage of diminution of hearing determined in accordance with sub-section (4).

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