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Safeguard OSH Solutions - Thomson Reuters

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Accident Compensation Cases

DU FALL v ACCIDENT REHABILITATION & COMPENSATION INSURANCE CORPORATION (DC, 27/05/94)

Judgment Text

DECISION OF JUDGE A W MIDDLETON 
A W Middleton Judge
The issue in this appeal is whether the appellant is entitled to the payment of a lump sum award of compensation under the Transitional Provisions of the Accident Rehabilitation Compensation and Insurance Act 1992 (“the Act”). 
The appellant is now aged 35 and lodged a claim with the Corporation on 31 August 1992 claiming noise induced hearing loss as a result of his previous occupation as an installer of burglar alarms between 1984 and 1989. 
The respondent accepted the appellant's claim and the audiology report assessed the loss of hearing as 0.5%. 
The appellant claimed a lump sum payment from the respondent on the grounds that the problems arose in the course of his employment between 1984 and 1989. On 9 February 1993 the respondent advised the appellant that he was not entitled to a lump sum payment because he did not seek medical treatment until after 1 July 1992. 
The appellant applied for a review of that decision and the review hearing took place on 2 June 1993. The Review Officer decided that pursuant to s 7(5), the appellant was not entitled to an award under the Transitional Provisions of the Act because the date of personal injury was deemed to have occurred on 31 August 1992. 
The appellant applied for a review of that decision and was concerned that while he had a legitimate claim the technicalities of the law precluded payment. He submitted that as a matter of natural justice he was entitled to a lump sum payment and submitted that it may be possible for this Court to grant the same. 
Section 7(5) of the Act reads: 
“(5)
The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which- 
(a)
The person first received treatment from a registered health professional for that personal injury as that personal injury; (emphasis mine) or 
(b)
That personal injury first resulted in the incapacity of the affected person-whichever first occurs. ”
Mr Blair submitted that under s 1(3) of the Act, the Third Schedule to the Act came into force on 1 July 1992. By s 179(1) the Accident Compensation Act 1982 was repealed. However, by s 135(3) and (4) any persons who had suffered personal injury by accident within the meaning of either the 1972 or 1982 Accident Compensation Acts before the 1st day of July 1992, and who had lodged a claim with the Corporation before 1 October 1992, would have the “acceptability of that claim determined under the Accident Compensation Act 1982 as if it had not been repealed”, with the result that such person would receive the entitlements provided by the 1982 Act but subject to Part VIII of the Act. 
Mr Blair further submitted that reference must be made to s 28 of the Accident Compensation Act 1982 which dealt with the question of cover in respect of a disease arising out of and in the course of a person's employment. That section further provided that the date of the commencement of the incapacity was to be treated as the date of the happening of the accident. 
Mr Blair further submitted that in respect of the Act “incapacity” means incapacity for employment. 
I agree with Mr Blair's submissions that pursuant to s 135(3) and (4) of the Act the appellant could have pursued the entitlement to lump sum compensation if he had suffered personal injury by accident within the meaning of the Accident Compensation Act 1982. However, as there was no evidence of incapacity within the ambit of s 28(3) of the 1982 Act, the Transitional Provisions did not apply and the appellant's claim has to be determined under the 1992 Act. This then brings into play s 7(5) which deems the date of injury to be 31 August 1992. 
The appellant was concerned that although he had consulted his general practitioner about his hearing problems before July 1992, he had been assured that he did not require treatment and it was not until the problem got worse that he sought treatment. This lead to the issue of the certificate from his general practitioner on 31 August 1992. 
While I sympathise with the appellant in his predicament, I am unable to change the law as he requested and as I explained to him at the hearing, I must confirm the Review Officer's decision. The appeal is therefore dismissed. 

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