Legal Research
Cases
Curran v Linfox Armaguard Pty Ltd

Curran v Linfox Armaguard Pty Ltd

Link copied

Case Copied 24 May 2021 77 min read

Contents

On this page

DETERMINATION OF APPEAL PANEL
CITATION:	Curran v Linfox Armaguard Pty Ltd [2021] NSWPICMP 76
APPELLANT:	William Curran
RESPONDENT:	Linfox Armaguard Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Dr Henley Harrison Dr Joseph Scoppa
DATE OF DECISION:	24 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for hearing loss with a deemed date of injury on 2 April 2006; AMS erred in making a deduction under section 323 of the 1998 Act for hearing loss that occurred in respect of the period of employment after 2 April 2006; question of whether there should be any deduction for hearing loss in subsequent employment; Smith v Mann, Tame v Commonwealth Collieries, Williams v Metropolitan Coal Co Ltd, Commonwealth v Bourne, Commonwealth v Thompson, Bain v Commissioner for Railways, Connair Pty Ltd Frederiksen, Russo v World Services and Constructions Pty Ltd, Rico Pty Ltd v Road Traffic Authority, Crisp v Chapman, Blayney Shire Council v Lobley & Anor, A & G Engineering Pty Ltd v Civitarese, Lennon v TNT Australia Pty Ltd and Schofield v Abigroup Limited considered; Held- no deduction should be made in respect of any loss in the respondent’s employment after 2 April 2006; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 November 2020 William Curran (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Kenneth Howison, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 27 October 2020.
The respondent to the Appeal is Linfox Armaguard Pty Ltd (the respondent), which was insured by Employers Mutual NSW Limited as agent for NSW Self Insurance Corporation at the relevant times.
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

In these proceedings, the appellant is claiming lump sum compensation in respect of hearing loss as a result of…

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.

Keep reading for free

Create a free CaseChat account to read Curran v Linfox Armaguard Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 76
Decision Date: 24 May 2021

CaseChat Overview and Summary

The matter before the court involved a claim for workers' compensation by Curran against Linfox Armaguard Pty Ltd for hearing loss, with the deemed date of injury set at 2 April 2006. The dispute centred on a decision by the Australian Mercantile and General Society (AMS) to make a deduction under section 323 of the Workers Compensation Act 1998 for hearing loss that allegedly occurred during the period following the employee's employment with the respondent. The court was tasked with determining whether any such deduction was appropriate.

The court had to consider whether the AMS was correct in deducing the compensation payable for hearing loss that occurred post the employee's employment cessation date. The legal issues included interpreting section 323 of the Workers Compensation Act 1998 and determining the extent to which the AMS should have considered the hearing loss that occurred after the employee left the respondent's employment. Various precedents were considered, including Smith v Mann, Tame v Commonwealth Collieries, Williams v Metropolitan Coal Co Ltd, Commonwealth v Bourne, Commonwealth v Thompson, Bain v Commissioner for Railways, Connair Pty Ltd Frederiksen, Russo v World Services and Constructions Pty Ltd, Rico Pty Ltd v Road Traffic Authority, Crisp v Chapman, Blayney Shire Council v Lobley & Anor, A & G Engineering Pty Ltd v Civitarese, Lennon v TNT Australia Pty Ltd, and Schofield v Abigroup Limited, to ascertain the correct application of the statutory provisions.

The court found that no deduction should be made for any hearing loss occurring after the cessation of employment. The decision was based on the interpretation of the relevant statutory provisions and the established case law, which indicated that compensation should not be reduced for injuries or conditions that developed after the employee's employment ended. The court revoked the decision of the MAC and ruled in favour of the applicant, thereby restoring the compensation entitlements without any deductions for the period following the employee's departure from the respondent's employment.

Orders