Almeida v Metsquare Pty Ltd - [2021] NSWPICMP 8

DETERMINATION OF APPEAL PANEL
CITATION:	Almeida v Metsquare Pty Ltd [2021] NSWPICMP 8
APPELLANT:	Mario Almeida
RESPONDENT:	Metsquare Pty Ltd
APPEAL PANEL:	Mr John Harris Dr Robert Payten Dr Joseph Scoppa
DATE OF DECISION:	8 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Appellant suffered binaural hearing loss where recent employment in New South Wales restricted to one-year noisy employment and prior noisy employment in Queensland extended over 22 years; appellant complained of hearing loss over seven years with a five-year history of tinnitus; AMS applied a deduction pursuant to section 323 of 22/29th based on a linear method of exposure to noisy employment in Queensland as opposed to employment in New South Wales; Held- section 323 applies to hearing loss deemed to have occurred pursuant to section 17. Reference made to section 68B(4) of the 1987 Act and observations in Pereira v Siemens Ltd; appellant’s evidence that he had a seven year history of hearing loss was compelling evidence that there was a pre-existing injury prior to the employment in New South Wales; AMS and Appeal Panel satisfied that there was pre-existing injury which contributed employment despite absence of any prior audiogram; the facts of the case warranted a substantial section 323 deduction; Appeal Panel declined to intervene with the deduction made by the AMS as it was within the range of permissible outcomes; Vannini v Worldwide Demolitions Pty Ltd applied; appeal dismissed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

Mr Mario Almeida (the appellant) suffered binaural hearing loss injury in the course of employment with Metsquare Pty Ltd (the respondent) deemed to have occurred on 17 October 2019.

A claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by letter dated 17 October 2019.[1] The s 66 claim was based on the report of Dr Lucchese dated 12 September 2019.[2]
[1] Application to Resolve a Dispute (Application), p 2.
[2] Application, p 10.
Dr Lucchese assessed the appellant at 25.6% binaural hearing loss. He added a further 2% for severe tinnitus. The total of 27.6% binaural hearing loss translated to 14% whole person impairment (WPI). Dr Lucchese did not refer to and made no deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Dr Williams was qualified by the respondent and provided a report dated 16 December 2019.[3] Dr Williams assessed the appellant at 17% WPI for hearing loss. The doctor then apportioned the hearing loss relevant to employment in New South Wales at 3/38^th of the total loss and rounded it to 1% WPI.
[3] Reply p 1.

By letter dated 23 October 2019 the respondent denied liability because the injury did not result in permanent impairment greater than 10% as required by s 66(1) of the 1987 Act.
The claim was listed before a Commission Arbitrator on 14 September 2020 who made orders remitting the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Almeida v Metsquare Pty Ltd [2021] NSWPICMP 8
Case: [2021] NSWPICMP 8
Decision Date: 8 March 2021

CaseChat Overview and Summary

The case of Almeida v Metsquare Pty Ltd involved a dispute regarding the application of section 323 of the relevant legislation in assessing the degree of an appellant's hearing loss. The appellant had suffered binaural hearing loss, with a recent employment period in New South Wales that involved noisy work for one year, and a prior period of noisy employment in Queensland that spanned 22 years. The appellant also had a seven-year history of hearing loss and a five-year history of tinnitus. The administrative manager of the Administrative Management System (AMS) applied a deduction based on a linear method of exposure to noisy employment, considering the employment in Queensland rather than the New South Wales employment. This decision was appealed.

The central legal issue was whether section 323 of the relevant Act applied to hearing loss deemed to have occurred pursuant to section 17. The court needed to determine if the AMS's application of a linear method of exposure to noisy employment, focusing on the Queensland period, was appropriate. The court also had to consider whether the appellant’s compelling evidence of a seven-year history of hearing loss indicated a pre-existing injury prior to the New South Wales employment, which would warrant a substantial deduction under section 323.

The court found that section 323 applies to hearing loss as per section 17 and referenced section 68B(4) of the 1987 Act and observations in Pereira v Siemens Ltd. The appellant’s history of hearing loss was deemed compelling evidence of a pre-existing injury. The AMS and Appeal Panel were satisfied that there was a pre-existing injury that contributed to the employment-related hearing loss, despite the absence of any prior audiogram. The court concluded that the facts of the case warranted a substantial deduction under section 323. The Appeal Panel declined to intervene with the deduction made by the AMS, finding it within the range of permissible outcomes. The decision in Vannini v Worldwide Demolitions Pty Ltd was applied, and the appeal was dismissed.

The court upheld the AMS's decision, affirming that the substantial deduction was appropriate given the appellant's pre-existing injury and the facts of the case.

Orders