Dimeski v Victorian WorkCover Authority - [2025] VSC 165

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05300

BORIS DIMESKI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2024
DATE OF JUDGMENT:	4 April 2025
CASE MAY BE CITED AS:	Dimeski v Victorian WorkCover Authority & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 165

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ADMINISTRATIVE LAW – Judicial review – Medical panel opinion – Plaintiff claimed for noise induced hearing loss – Victorian WorkCover Authority accepted liability but assessed impairment at 0% – Medical questions referred to a medical panel – Medical panel assessed impairment of 0% – Whether medical panel misapplied Guidelines for the Assessment of Noise Induced Hearing Loss – Whether medical panel provided adequate reasons – No error demonstrated in medical panel’s opinion – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B McManamey	IDA Legal
For the First Defendant	Mr R Kumar with Ms E Golshtein	TG Legal + Technology
For the Second and Third defendants	No appearance

HIS HONOUR:

In this proceeding the plaintiff, Mr Dimeski, seeks:

(a) an order in the nature of certiorari quashing the 24 September 2023 opinion (‘the opinion’) of a medical panel (‘the Panel’) comprising the second and third defendants; and

(b) an order in the nature of mandamus remitting the medical questions in respect of which the opinion was given to a differently constituted medical panel to be reconsidered according to law.

Mr Dimeski worked for South Pacific Tyres between 1973 and 1997. On 18 September 2021 Mr Dimeski made a claim under the Accident Compensation Act 1985 (Vic) (‘ACA’) for an impairment benefit alleging noise induced hearing loss. The Victorian WorkCover Authority (‘VWA’) accepted liability for Mr Dimeski’s noise induced hearing loss (‘NIHL’) but assessed his whole person impairment at 0%. Mr Dimeski disputed the assessment of whole person impairment and so medical questions were referred to the Panel.

The Panel’s opinion was as follows:

Question a): What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s assessed in accordance with Division 4 of Part 2?

Answer: The Whole Person Impairment calculated in accordance the Act is 0%. The degree of impairment is permanent.

Question b) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in Section 221?

Answer: No.[1]

[1]Court Book (‘CB’) 63.

This application for judicial review boils down to two questions:

(a) Was the Panel required to calculate Mr Dimeski’s percentage hearing loss using audiogram results for 2 kHz, 3 kHz and 4 kHz, rather than just 3 kHz and 4 kHz? Mr Dimeski says it was. The VWA says it was not.

(b) Did the Panel give adequate reasons for its determination not to use the 2 kHz audiogram results in its calculation of Mr Dimeski’s percentage hearing loss? Mr Dimeski says they did not. 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

Case: [2025] VSC 165
Decision Date: 4 April 2025

CaseChat Overview and Summary

In the Federal Circuit Court, Dimeski sought judicial review of a decision by the Victorian WorkCover Authority. The plaintiff, Dimeski, claimed compensation for noise-induced hearing loss sustained during his employment. The Authority accepted liability for the injury but assessed the impairment at 0%. To assist with the assessment, the Authority referred the matter to a medical panel, which also assessed the impairment at 0%. Dimeski sought to challenge this assessment, arguing that the panel had misapplied the Guidelines for the Assessment of Noise Induced Hearing Loss and had failed to provide adequate reasons for their decision.

The court considered whether the medical panel had erred in law by misapplying the guidelines, and whether they had provided sufficient reasons to justify their assessment. The court noted that the guidelines provided a framework for assessing hearing loss and that the panel had followed this framework. The court found that the panel had considered all relevant evidence and had provided a detailed explanation for their assessment. The court was satisfied that the panel had not misapplied the guidelines and that their reasons were adequate.

Based on this reasoning, the court concluded that there was no error in the medical panel’s opinion. The court dismissed the proceeding, holding that the Authority’s assessment of 0% impairment was not challenged by the evidence or the law. The court found that the medical panel had properly exercised their discretion and that the decision was not unreasonable. Therefore, the plaintiff's application for judicial review was dismissed, and the Authority's assessment was upheld.

Orders