Petreski v D Akmadziz & I Admadzic (NSWPICMP 2023)

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Key Takeaways

In this case, the Panel determined that hearing loss during self-employment could not be considered a ‘pre-existing injury’ in the same way as any noise-induced hearing loss suffered in employment outside of NSW.

Brief Facts 

This was an appeal by a worker against a Medical Assessment Certificate (MAC). The appellant relied on the following grounds of appeal under s327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

• the assessment was made on the basis of incorrect criteria, and
• the MAC contains a demonstrable error.

The Panel determined that the appellant should undergo a further medical examination because it was of the view that there was demonstrable error in the MAC in respect of the deduction made from the degree of whole person impairment assessed by the Medical Assessor (MA) pursuant to s323 of the 1998 Act for ’his long period of self-employment’, and in the manner in which the degree of noise exposure in self-employment should be dealt with.

Regarding his work history, the worker came to Australia from Macedonia in 1972 where he served an apprenticeship as a painter for five years, and as a wall paperer for six years, during which time he provided no history of noise exposure. The worker then worked as a painter on high rise buildings in Brisbane, Queensland from 1972 until 1975. During this time he was exposed to the noise experienced by a construction site worker. The worker then worked for the Sydney Water Board for six to eight weeks and was exposed to the noise of tunnelling, drilling rock, excavators and winches. Thereafter, he spent the rest of his working life as a painter, a significant period of which was in self-employment between 1975 and September 2009. The worker was then employed as a painter by the respondent between October and November 2009.

The worker was deemed to have suffered injury in the form of industrial deafness arising out of or in the course of his employment with the respondent on 4 November 2009.

Judgment

There was no dispute that the respondent was the worker’s last noisy employer. One of the primary issues for consideration was whether the MA had fallen into error in respect of non-occupational hearing loss and the deduction made pursuant to s323 of the 1998 Act by referring to the worker’s long period of noise exposure during self-employment, and noise exposure in Macedonia and Queensland. In this regard, the worker submitted that the assessment of non-occupational hearing loss assessed by the MA was excessive.

In reply, the respondent noted the MA’s consideration of hearing loss during self-employment, and that it could be considered a ’pre-existing injury’ in the same way as an injury from outside New South Wales, and thus capable of being deducted under s323 of the 1998 Act. The MA referred to the worker’s ’long period of noise exposure during self-employment’ and ’noise exposure in Queensland and Macedonia’ with reference to the 10% deduction indicated by him pursuant to s323 of the 1998 Act.

The Panel cited the Court of Appeal case of Blayney Shire Council v Lobley that explained that loss of hearing under s17 of the of the Workers Compensation Act 1987 (the 1987 Act) is not concerned with true causation but deems the loss to have happened at one time. It required the last noisy employer to pay compensation whether or not that employment actually caused the loss. In this case, the respondent was the last noisy employer, and by the operation of s17 all of the worker’s hearing loss was deemed to have been suffered on 4 November 2009.

The Panel went on to explain that when determining the compensation payable by an employer in a case in which s17 applies (loss or further loss of hearing), s68B of the 1987 Act provides that s323 of the 1998 Act applies to that compensation subject to the following:

•  there is to be no deduction under s323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or s16 of the former Act has been paid or is payable,
•  for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under s17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).

It was noted that self-employment is not ’previous relevant employment’.

The Panel found error in the inclusion by the MA of hearing loss sustained during a long period of self-employment into the deduction made pursuant to s323, and in the manner in which the degree of noise exposure in self-employment should be dealt with. The Panel held that hearing loss during self-employment could not be considered to be a ’pre-existing injury’ in the same way as any noise-induced hearing loss suffered in employment outside of NSW. An injury must be sustained in the course of employment. That does not include self-employment. The Panel stated:

Section 323 of the 1987 Act may be relevant to the appellant’s period of employment in Macedonia or Queensland, where he was working for an employer, if the relevant factual evidence is available. This is considered hereunder. However, it is an error to make a deduction under s323 for the period of self-employment in which the appellant was engaged between 1975 and September 2009.

The MAC was revoked and a new certificate issued.

Implications

This case confirms that even if a worker was self-employed for a significant period, hearing loss during self-employment cannot be considered a ‘pre-existing injury’ in the same way as any noise-induced hearing loss suffered in employment outside of NSW.