Ghossayn Group Pty Ltd v Warren - [2021] NSWPICMP 6

DETERMINATION OF APPEAL PANEL
CITATION:	Ghossayn Group Pty Ltd v Warren [2021] NSWPICMP 6
APPELLANT:	Ghossayn Group Pty Ltd
RESPONDENT:	William Alexander Warren
APPEAL PANEL:	Marshal Douglas Dr Brian Williams Dr Robert Payten
DATE OF DECISION:	5 March 2021
CATCHWORDS:	WORKERS COMPENSATION- respondent worker had been exposed to hazardous occupational noise in employment for around 50 years including 20 years in employment in NZ before being commencing employment in NSW; AMS did not make any deduction under section 323 for previous injury or pre-existing condition or abnormality; appellant submitted AMS erred by not doing so; Held- Appeal Panel agreed finding the evidence with respect to the nature and duration of the occupational noise to which the respondent was exposed in NZ established that the respondent had a damaged and therefore abnormal cochlea at the time he commenced NSW employment that would have caused him hearing loss at that time that contributes to his present hearing loss; AMS erred by not making a deduction under section 323; Appeal Panel revoked MAC and reassessed medical dispute, but used the AMS’s audiometric measurements for the air conduction, rather than his measurements for bone conduction, which the AMS had used to assess respondent’s hearing impairment; Appeal Panel considered air conduction measurements more reliable.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 November 2020 Ghossayn Group Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Thandavan Raj, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 9 October 2020.
The Appeal Panel observes that on 28 February 2021 the Workers Compensation Commission (WCC) ceased to be, and that on 1 March 2021 the Personal Injury Commission was established. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor and an Arbitrator is now known as a Member. Given that at the time Dr Thandavan Raj issued the MAC he was an Approved Medical Specialist of the WCC, the Appeal Panel shall use the acronym AMS in these reasons refer to him.
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 Registrar 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 set out the practice and procedure in relation to the medical appeal process under s328 of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). An…

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: [2021] NSWPICMP 6
Decision Date: 5 March 2021

CaseChat Overview and Summary

In the case of Ghossayn Group Pty Ltd v Warren, the dispute involved the extent of the workers' compensation liability of the appellant, Ghossayn Group Pty Ltd, for hearing loss sustained by the respondent, Mr Warren. The matter was heard in the Administrative Appeals Tribunal (AAT), specifically the Appeal Panel. The core issue was whether the Administrative Manager of Safety (AMS) had correctly assessed the extent of Mr Warren's hearing loss, particularly whether it was appropriate to make a deduction under section 323 for a pre-existing condition or abnormality. The appellant argued that the AMS should have made such a deduction considering Mr Warren's exposure to hazardous occupational noise over many years, including two decades in New Zealand.

The AAT Appeal Panel found that the AMS had erred by not making a deduction for the pre-existing condition. The Panel concluded that the evidence demonstrated Mr Warren had a damaged and abnormal cochlea at the time he commenced employment in New South Wales, which would have contributed to his present hearing loss. The extensive exposure to occupational noise over his career, particularly the 20 years in New Zealand, provided a sufficient basis to conclude that his cochlea was already damaged before he started working in New South Wales. Therefore, the AMS's failure to account for this in its assessment was deemed incorrect.

As a result of the Appeal Panel's findings, the original Medical Assessment Certificate (MAC) was revoked, and the medical dispute was reassessed. The Panel opted to use the AMS’s audiometric measurements for air conduction instead of bone conduction, which the AMS had used. The Appeal Panel considered the air conduction measurements more reliable for determining the extent of Mr Warren's hearing impairment. This reassessment led to a revised assessment of the compensation payable by the appellant.

Orders