Bodiroza v Alpha & Omega Bricklaying Pty Ltd - [2022] NSWPICMP 483

DETERMINATION OF APPEAL PANEL
CITATION:	Bodiroza v Alpha & Omega Bricklaying Pty Ltd [2022] NSWPICMP 483
APPELLANT:	Milorad Bodiroza
RESPONDENT:	Alpha & Omega Bricklaying Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Joseph Scoppa
DATE OF DECISION:	29 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appellant assessed for whole person impairment (WPI) resulting from injury of hearing loss; MA made deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) of 70% for proportion of WPI due to hearing loss that occurred when appellant was exposed to noise in (1) employment in Yugoslavia prior to his employment with the respondent, (2) when previously self-employed, and (3) when self-employed subsequent to his employment with respondent; Appeal Panel held MA erred by making a deduction under section 323 for post-employment noise, and post-employment noise was not, in any event, such that it would have contributed to appellant’s hearing loss; Held – Appeal Panel held that there was damage to appellant’s cochlea from exposure to noise prior to commencing employment to which section 17 of the 1998 Act related, and that damage contributes to appellant’s present hearing impairment, but the extent of the contribution was too difficult to determine so the deduction to be made under s323(1) of the 1998 Act in accordance with s323(2) of the 1998 Act was 10%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 August 2022 Milorad Bodiroza, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Thandavan Raj, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 August 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by Alpha & Omega Bricklaying Pty Ltd, the respondent, as a bricklayer between 2002 and 31 March 2011. The appellant was exposed to hazardous noise during that employment from brick saws and mixers and noise generally…

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

Case: [2022] NSWPICMP 483
Decision Date: 29 November 2022

CaseChat Overview and Summary

The case of Bodiroza v Alpha & Omega Bricklaying Pty Ltd involved the determination of the extent to which a whole person impairment (WPI) for hearing loss sustained by the appellant, Mr Bodiroza, was attributable to his employment with the respondent, Alpha & Omega Bricklaying Pty Ltd. The matter was heard by an Appeal Panel under the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The primary issue before the Panel was whether the Medical Assessor (MA) correctly applied the statutory provisions in assessing the WPI attributable to Mr Bodiroza's hearing loss. Specifically, the Panel examined whether the MA erred by deducting 70% of the WPI for hearing loss due to noise exposure outside of the employment with the respondent.

The Appeal Panel determined that the MA had erred in making a deduction for post-employment noise exposure, as the evidence did not support that such noise exposure contributed to the appellant's hearing loss. However, the Panel found that there was pre-existing damage to the appellant's cochlea from noise exposure prior to his employment, which related to the provisions of section 17 of the 1998 Act. This damage was considered to contribute to the appellant's current hearing impairment. Despite acknowledging this contribution, the Panel concluded that quantifying the extent of this contribution was too difficult. Therefore, the deduction to be made under section 323(1) of the 1998 Act, in accordance with section 323(2) of the 1998 Act, was determined to be 10%. As a result, the Appeal Panel revoked the Medical Assessment Certificate issued by the MA.

The final orders of the Appeal Panel included the revocation of the original Medical Assessment Certificate and the direction that a new assessment be conducted, taking into account the appropriate 10% deduction for the pre-employment noise exposure. This decision underscores the importance of precise application of the statutory provisions in workers' compensation cases, particularly when determining the attributable WPI for hearing loss.

Orders