Amcor Plc v Scardamaglia - [2023] VSCA 290

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0041

AMCOR PLC	Applicant
v
FELICE SCARDAMAGLIA	First Respondent
A/PROF BERNARD LYONS	Second Respondent

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JUDGES:	BEACH, McLEISH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2023
DATE OF JUDGMENT:	30 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 290
JUDGMENT APPEALED FROM:	[2023] VSC 114 (Forbes J)

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Industrial deafness – Tinnitus – Medical panel required to assess degree of permanent impairment resulting from industrial deafness – Whether medical panel erred in failing to consider effect of tinnitus – Industrial deafness required to be assessed using ASOHNS Guidelines – Whether ASOHNS Guidelines permitted or required limited recourse to AMA Guides (4^th ed) for purpose of assessing effect of tinnitus on hearing – Construction of ASOHNS Guidelines – Medical panel erred in failing to consider effect of tinnitus.

Accident Compensation Act 1985, ss 91(1), (3) and (4).

HJ Heinz Company Australia Ltd v Kotzman [2009] VSC 311 applied; Victorian WorkCover Authority v Elsdon(2013) 42 VR 434, Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77 referred to.

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Counsel
Applicant:		Mr MF Fleming KC with Ms S Gold
First Respondent:		Mr JP Brett KC with Mr E Makowski
Second Respondent:		No appearance
Solicitors
Applicant:	Hall and Wilcox
First Respondent:	Williams Winter
Second Respondent:	Victorian Government Solicitor’s Office

BEACH JA
MCLEISH JA
MACAULAY JA:

From 1985 until he retired in 2012, Felice Scardamaglia was employed by Amcor PLC (‘the employer’) in a noisy work environment. In June 2020, he made a claim for an impairment benefit under the Accident Compensation Act 1985 (‘the Act’), alleging he had suffered a loss of hearing and tinnitus caused by being exposed to noise in the course of this employment.
In March 2021, Mr Scardamaglia was examined by a specialist ear, nose and throat surgeon, Michael Silverstein. Mr Silverstein determined that Mr Scardamaglia has an industrial hearing loss which merits the provision of bilateral hearing aids. He concluded, however, that Mr Scardamaglia’s whole person impairment percentage was zero. Relying upon Mr Silverstein’s report, the employer (through its claims manager) accepted liability for Mr Scardamaglia’s hearing loss, but contended that he was not entitled to an impairment benefit because his whole person permanent impairment was zero per cent.
Mr Scardamaglia accepted the employer’s liability decision, but disputed the whole person permanent impairment assessment. As a result, the employer referred two medical questions to a medical panel for its opinion. A medical panel comprising Associate Professor Bernard Lyons, an otolaryngologist, was convened to give its opinion in connection with the referred medical questions. On 18 September 2021, the medical panel provided a Certificate of Opinion and a statement of its Reasons for Opinion. The relevant medical questions and the panel’s answers were set out in the Certificate of Opinion as follows:
Question a)What is the degree of permanent impairment resulting from industrial deafness assessed in…

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.

Continue reading Amcor Plc v Scardamaglia

Details

AGLC: Amcor Plc v Scardamaglia [2023] VSCA 290
Case: [2023] VSCA 290
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of Amcor Plc v Scardamaglia was before the court concerning a dispute over the assessment of a workplace injury and the degree of permanent impairment resulting from industrial deafness. The respondent, Scardamaglia, sought judicial review of a decision by a medical panel appointed under the Accident Compensation Act 1985, which determined his degree of permanent impairment due to his industrial deafness. The primary legal issue before the court was whether the medical panel had erred in their assessment by failing to consider the effect of tinnitus on the degree of permanent impairment. A secondary issue was whether the Australian Society of Otolaryngology, Head and Neck Surgery (ASOHNS) Guidelines permitted or required limited recourse to the AMA Guides (4th ed) for the purpose of assessing the effect of tinnitus on hearing.

The court found that the medical panel had indeed erred in their assessment by not considering the effect of tinnitus on the degree of permanent impairment. The court held that the ASOHNS Guidelines required medical panels to assess industrial deafness and its impact on hearing using the Guidelines, but also permitted limited recourse to the AMA Guides (4th ed) to assess the effect of tinnitus on hearing. The court found that the medical panel had failed to consider the effect of tinnitus, which resulted in an error of law and a failure to properly apply the ASOHNS Guidelines. The court quashed the decision of the medical panel and remitted the matter back for reassessment.

Orders