Elias Estphan Transport Pty Ltd v Estphan
[2025] NSWPICMP 659
•1 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Elias Estphan Transport Pty Ltd v Estphan [2025] NSWPICMP 659 |
| APPELLANT: | Elias Estphan Transport Pty Ltd |
| RESPONDENT: | Elias Estphan |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Thandavan Raj |
| DATE OF DECISION: | 1 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; noise induced hearing loss; deduction for previous compensation paid when only monetary amount known; options available to Medical Assessor to make deduction; Held – Medical Assessment Certificate revoked. |
BACKGROUND
On 12 November 2025 Elias Estphan Transport Pty Limited (Transport) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Brian Williams, who issued a Medical Assessment Certificate (MAC) on 16 October 2024.
Transport relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
Mr Estphan claimed compensation for binaural hearing impairment (BHI). The Medical Assessor assessed 11% whole person impairment (WPI) but noted that Mr Estphan had been previously compensated in a monetary amount. The Medical Assessor said that the loss in respect of the previous claim needed to be deducted by the Personal Injury Commission (Commission) because he did not have details as to the percentage.
Transport filed an appeal on the basis that the Medical Assessor failed to make a deduction under s 323 of the 1998 Act for the loss deemed to have been suffered on 19 June 1989. Using the Table of Disabilities in force under s 66 of the Workers Compensation Act 1987 (the 1987 Act) as at that date, Transport calculated that the $1,885 paid represented 3.32% binaural hearing loss.
Mr Estphan’s solicitors told the Commission that he would not lodge a Notice of Opposition. On 15 January 2025 the Commission wrote to the parties, noting that Transport had calculated the previous loss at 3.2% BHI. Because there was an issue about the monetary entitlement due to the previous settlement, the President’s delegate, referred the matter to a Member of the Commission.
Ideally at that conference, the agreement of the parties to the percentage previously assessed would have been obtained and a reconsideration of the MAC sought under s 329 of the 1998 Act. That did not occur but leave was granted to Mr Estphan to file a Notice of Opposition and the matter was referred to a Medical Appeal Panel.
When Mr Estphan’s Notice of Opposition was filed, it raised additional grounds of appeal. The Commission referred to the parties to clause 26 of Procedural Direction PIC7 “Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes”, which provides that a separate appeal must be lodged if a respondent wishes to rely on further grounds of appeal. The President’s delegate made directions about the filing of the appeal and submissions in reply. We have been informed that Mr Estphan did not comply with those directions.
The President’s delegate therefore determined that only Transport’s appeal should proceed. The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor failed to make a deduction for the pre-existing hearing loss. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made and which have been referred to us.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Estphan to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Transport submitted that the Medical Assessor failed to give appropriate weight to Mr Estphan’s pre-existing condition and to address s 323 of the 1998 Act. It noted that the results of a SIRA search dated 21 March 2024 confirmed that Mr Estphan had been paid $1,885 as compensation for binaural hearing loss for a deemed date of injury of 19 June 1989, whilst employed by Transport Service of NSW. Transport noted that the monetary amount represented 3.32% BHI, as at the date of injury. It noted that the information was provided to Dr Winkler who made the appropriate deduction in his report dated 29 November 2023.
Transport said that the Medical Assessor should either have made a deduction reflecting 3.3% BHI or applied a one-tenth deduction under s 323(2). On either method of calculation, the assessment of Mr Estphan’s BHI was less than the threshold for the recovery of further compensation.
We have considered only that part of Mr Estphan’s submissions that respond to Transport’s appeal. He agreed that there should be some deduction and that one-tenth would be appropriate.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor obtained a history that Mr Estphan had gradually progressive hearing loss since about 1986 and that it was worse on the left. He used binaural hearing aids. He experienced intermittent tinnitus about twice a week for one to two hours.
The Medical Assessor noted that Mr Estphan had a prior claim with a date of injury of 19 June 1989 and was paid $1,885.
As a result of an audiogram, the Medical Assessor determined that Mr Estphan suffered bilateral sensorineural hearing loss maximal in the high frequencies with left asymmetry. He considered that Mr Estphan had noise induced hearing loss and loss of uncertain aetiology.
The Medical Assessor assessed 39.9% BHI from which he deducted 15.6% for non-work related loss. He deducted 3.3% for presbyacusis and did not make an allowance for severe tinnitus. The adjusted total was 21% BHI, which converts to 11% WPI. He said:
“He has had a prior claim of $1885.00 with date of injury of 19.6.1989. Therefore the loss due to this claim needs to be deducted by the PIC as I do not have available to me the binaural hearing loss percentage due to the prior claim in 1989.”
Though he commented on the reports of Dr Winkler who saw Mr Estphan at the request of Transport, the Medical Assessor did not comment on the deduction made by Dr Winkler in respect of the previous claim or identify that he read the relevant report, referring only to Dr Winkler’s reports dated 29 November 2023.
Evidence
As Transport noted, the claims history report dated 21 March 2024 shows that Mr Estphan was paid $1,885 in respect of noise induced hearing loss with a deemed date of injury of 19 June 1989.
Mr Estphan relied on a report by Dr Howison dated 16 December 2022. Dr Howison assessed 23.9% BHI and did not make any deduction from his assessment in respect of the earlier claim (which he was told was in 1984). He said that details needed to be obtained and the quantum should be deducted from his current loss. There is no supplementary report from Dr Howison in the file.
Dr Winkler said that the previous claim represented 3.3% BHI. He said in his report dated 16 April 2024 that Mr Estphan suffered 15.4% BHI and 8% WPI. He said that the previous loss of 3.3% was 21% of the current BHI so that Mr Estphan was to be compensated for 79% of his assessment of 8% WPI which was 6% WPI.
Reasons
The Medical Assessor was alert to the fact that a deduction should be made from the WPI assessed under s 323 of the 1998 Act.
Broadly and in summary, s 17 of the 1987 Act provides that the last noisy employer is liable to compensate a worker for all of the hearing loss suffered at the deemed date of injury (subject to some exceptions for apportionment).
Section 68B(4)(a) of the 1987 Act provides that, in a case where s 17 applies, there is to be no deduction under s 323 of the 1998 Act for any proportion of the impairment due to previous relevant employment except for any proportion for which compensation under Division 4 of Part 3 of the 1987 Act or s 16 of the Workers Compensation Act 1926 was paid or payable.
Because compensation was paid to Mr Estphan, it was necessary to make a deduction under s 323 reflecting that amount from the amount assessed by the Medical Assessor.
There were two options available to the Medical Assessor to deal with the information he said he lacked and to enable him to make a s 323 deduction. Instead of taking either of them, he issued a MAC certifying that Mr Estphan suffered 11% WPI. He anticipated that the Commission would make the deduction, but in doing so failed to appreciate that the MAC he issued was conclusively presumed to be correct under s 326 of the 1998 Act. It was not possible for the Commission to make adjustments to the MAC which affected the amount of WPI assessed. Either a reconsideration of the MAC by the Medical Assessor or a medical appeal was therefore necessary.
The options available to the Medical Assessor were to:
(a) make a deduction in accordance with the Guidelines, either on the basis of the information in the file or requesting it by the parties, or
(b) apply a one-tenth deduction in accordance with s 323(2) of the 1998 Act.
The preferable method is to make the deduction under paragraph 9.15 of the Guidelines because that paragraph sets out a specific method for the deduction of previous impairment for noise-induced hearing loss. The paragraph provides:
“The method of subtracting a previous impairment for noise-induced hearing loss, where the previous impairment was not assessed in accordance with the Guidelines, is as shown in the following example:
• The current level of binaural hearing impairment is established by the relevant specialist.
• Convert this to WPI using Table 9.1 in the Guidelines.
• Calculate the proportion of the current binaural hearing impairment that was accounted for by the earlier assessment and express it as a percentage of the current hearing impairment.
• The percentage of current hearing impairment that remains is the amount to be compensated.
• This needs to be expressed in terms of WPI for calculation of compensation entitlement.
Example:
• The current binaural hearing impairment is 8%.
• The WPI is 4%.
• The binaural hearing impairment for which compensation was paid previously is 6%, which is 75% of the current binaural hearing impairment of 8%.
• The remaining percentage, 25% is the percentage of WPI to be compensated.
• Twenty-five per cent of the WPI of 4% is 1% WPI.”
Several documents in the file confirm the conversion of the previous payment to 3.3% BHI – the s 78 notice dated 3 May 2024 appears in the Application to Resolve a Dispute and the Reply. Dr Winkler’s report dated 16 April 2024 is in the Reply.
We agree that the conversion set out by Dr Winkler in that report is correct. Table 42 of the SIRA Workers Compensation Benefits Guide issued in July 2025 shows that, for a deemed date of injury of 19 June 1989, the maximum payable for binaural hearing loss was $56,777.50. A payment of $1,885 represents 3.32% of the maximum.
If the Medical Assessor was not equipped to make that calculation or not minded to accept the percentage in Dr Winker’s report and the s 78 notice, it was open to him to call for information from the parties under s 324(1)(b) of the 1998 Act to enable him to undertake the calculation set out below.
We have applied the method of subtracting a previous loss in paragraph 9.15 of the Guidelines to the Medical Assessor’s assessment of 11% WPI. 3.3% BHI for the previous claim is 15.7% of the 21% BHI assessed by the Medical Assessor. Mr Estphan is entitled to be compensated for 84.3% of the WPI assessed by the Medical Assessor or 9% WPI.
The other method that the Medical Assessor could have adopted was to apply the one-tenth deduction in s 323(2) of the 1998 Act on the basis that he considered that the extent of the previous loss was difficult or costly to determine. If the Medical Assessor had deducted one-tenth of 11%, he would have deducted 1.1%, rounded down under the Guidelines to 1%, resulting in an assessment of 10% WPI.
On either of those options, the amount assessed falls under the threshold for the payment of permanent impairment compensation.
Because the Guidelines specify the method by which the deduction is to be made, we consider it appropriate to apply that deduction instead of that in s 323(2).
For these reasons, we have determined that the MAC issued on 16 October 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W24456/24 |
Applicant: | Elias Estphan |
Respondent: | Elias Estphan Transport Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Brian Williams and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - calculation of whole person impairment (WPI) for industrial deafness in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-
| Notional date of injury | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI |
| 1 April 2022 | 500 | 40 40 | 40 40 | 6.4 | 0.0 |
| 1000 | 40 40 | 35 30 | 6.3 | 0.0 | |
| 1500 | 50 50 | 35 40 | 5.8 | 4.5 | |
| 2000 | 85 80 | 45 45 | 7.1 | 6.1 | |
| 3000 | 80 80 | 65 65 | 7.3 | 7.0 | |
| 4000 | 80 80 | 65 65 | 7.0 | 6.7 | |
| 6000 | 80 | 55 | |||
| 8000 | 90 | 70 | |||
| TOTAL % BHI: 39.9% | |||||
| Less Pre-existing non-related loss: 15.6% | |||||
| Less Presbyacusis correction: 3.3% | |||||
| Add % of severe tinnitus: 0.0% | |||||
| Adjusted total % BHI: 21.0% | |||||
| Resultant total BHI of 21 % = 11 % whole person impairment (Table 9.1) | |||||
| Less s 323 deduction = 9% WPI | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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