April 2020

Last noisy employer wears it again - Robert Hanzlicek v Protech Management Pty Limited

Section 17 of the Workers Compensation Act 1987 (“1987 Act”) contains special provisions relating to hearing loss claims.  Section 17(1)(c) of the 1987 Act deems compensation payable by the last noisy employer.  The effect of this section shifts liability for hearing loss claims to the last noisy employer.

This issue was tested in the case of Robert Hanzlicek v Protech Management Pty Limited [2019] NSWWCC 411, where the worker was employed as an aluminium cutter at the respondent’s premises between February 2017 and the deemed date of injury on 29 February 2019.  Noisy employment and last noisy employer were not in issue.  The worker made a claim for 15% WPI for binaural hearing loss in respect of his employment with the respondent.

The worker previously made a claim for industrial deafness in 2004 for 12% WPI resulting from his employment with a previous employer.  However, he was never paid compensation for the alleged injury.

The respondent in the current proceedings argued the worker’s claim should be dismissed in light of the previous claim made in 2004 against another employer.  The respondent argued there could be no question the worker suffered an earlier injury with a former employer and the current claim was limited to 3% WPI, being the difference between the earlier claim for 12% WPI and the current claim for 15% WPI.  The respondent therefore argued the worker did not meet the threshold for an award of lump sum compensation under section 66(1) of the 1987 Act.

The worker argued the appropriate respondent is the last noisy employer responsible for his hearing loss, pursuant to section 17 of the 1987 Act.  In other words, the entirety of his industrial deafness injury fell on the respondent, who was his last noisy employer.

The arbitrator dismissed the respondent’s case and referred to the decision of Deputy President Roche in Downer EDI Works Pty Ltd v McLuckie [2014] NSWWCCPD 57 (“McLuckie”).  In McLuckie, the worker made 2 separate claims for compensation against different employers, both relating to the development of skin cancer.

In 2005, Mr McLuckie made a claim for 19% WPI arising from skin cancer.  Proceedings in relation to this claim were ultimately discontinued.  In 2008, he made a claim for 36% WPI against a later employer, also for skin cancer.  In both claims, the skin cancer was alleged to have arisen by way of a disease caused by the nature and conditions of his employment.

Mr McLuckie relied on sections 15 and 16 of the 1987 Act, which operate in a similar way to section 17 in that they deem compensation to payable by the last employer for whom a worker worked in employment capable of causing the disease (section 15) or substantially contributing to the disease (section 16). 

The later employer in McLuckie alleged that, because proceedings had been commenced against a previous employer, the deemed date of injury was the date of claim against the earlier employer, and the later employer was not liable. 

At first instance, the arbitrator in McLuckie held that even though the worker had made claims on 2 different dates against 2 different employers, as the date of injury was alleged to be the date of the second claim, the worker was entitled to prove that claim.  He concluded the fact the worker had made an earlier valid claim that gave rise to an earlier date of injury did not prevent him from pressing the later claim.  He considered the worker could elect to advance either claim, and the later employer could not use the earlier claim as a defence.  The employer appealed that decision but the arbitrator’s reasons were upheld by the Deputy President.

The arbitrator in Hanzlicek concluded the circumstances of this case were analogous to McLuckie in that the worker made a previous claim for hearing loss against an earlier employer when no permanent impairment compensation was paid and later sought to prosecute a claim for hearing loss against the last noisy employer (Protech).  He said as was the case in McLuckie, the worker was entitled to prove the later claim.  Given there was no dispute about noisy employment and last noisy employer, he believed the worker had proven his claim.

The arbitrator ruled the respondent’s argument the worker’s claim should be limited to a further 3% WPI in light of the earlier claim was misconceived.  He said such a finding would be contrary to the decision in McLuckie and the requirements of section 17 of the 1987 Act, which pin liability on the last relevant employer. 

The arbitrator was therefore satisfied the worker had suffered an injury by way of binaural hearing loss in the course of his employment with the respondent, which was the last noisy employer and, accordingly, the matter was remitted to the Registrar for referral to an AMS to determine permanent impairment arising from the injury.

Things to consider

The outcome of this case would have been quite different if there was an issue about whether Protech was the worker’s last noisy employer and whether the worker’s employment with Protech had the necessary tendencies, incidents or characteristics to give rise to a real risk of hearing loss.  Because neither was in issue, the arbitrator easily concluded the worker’s claim based on the 2019 date of injury had been proven.  It then followed that all the worker’s hearing loss fell on the respondent as the last noisy employer, in accordance with section 17 of the 1987 Act. 

Contribution from earlier noisy employers did not arise.  Section 17(1)(d) of the 1987 Act allows the last noisy employer to recover contribution to the payment of compensation from prior noisy employers, if the prior employment falls within the “relevant period.”

The “relevant period” is defined as:

“Where the worker has not had prior injury (being a loss of hearing or a further loss of hearing) in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury.”

In other words, a later liable employer can only recover contribution from a previous noisy employer where the previous noisy employment occurred in the five-year period immediately before the date of notice of injury, not the date of injury. 

We don’t have the complete facts about the worker’s noisy employment prior to employment with Protech.  However, it seems there was no claim for contribution against the earlier employer.  Nonetheless contribution should always be considered where there is evidence of previous noisy employment within the five-year timeframe specified by section 17 of the 1987 Act.

Authors: Mick Franco and Jessica Maiuolo