JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2024
DATE OF JUDGMENT:	6 November 2024
CASE MAY BE CITED AS:	Gray v Victorian WorkCover Authority & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 680

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ADMINISTRATIVE LAW — Judicial review — Medical panel opinion — Plaintiff claimed in respect of hearing loss and tinnitus — Accepted injury in respect of hearing loss; tinnitus rejected — Medical questions referred to a medical panel — Panel assessed loss of hearing pursuant to chapter 9 of the American Medical Association Guides to the Evaluation of Permanent Impairment (‘AMA Guides’) – Panel assessed impairment of 0% in respect of tinnitus — Whether Panel misapplied the AMA Guides — Scardamaglia v Amcor Pty Ltd & Anor [2023] VSC 114, Amcor PLC v Scardamaglia [2023] VSCA 290 — Irwin v Victorian WorkCover Authority & Anor [2024] VSC 615 — No error — Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B McManamey	Industrial Deafness Australia
For the First Defendant	R Kumar E Golshtein	Hall & Wilcox
For the Second Defendant	No appearance	DLA Piper Australia

Contents

A.. Introduction

B.. Grounds of review

C.. Principles

D.. The methodology of assessment

E... The Panel’s decision

E... Further Evidence

F... Submissions

G.. Consideration

H.. Annexure A

HER HONOUR:

A Introduction

Mr Terry Gray (the plaintiff) seeks judicial review of a medical panel opinion. The medical panel (the Panel) was constituted under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the WIRC Act). The Panel assessed the plaintiff’s degree of impairment arising from hearing loss as a result of employment. The opinion of the Panel dated 10 January 2024 calculated the whole persona impairment at 0%. The accepted noise induced binaural hearing loss was assessed at a loss of 9.4%. The Panel gave no additional impairment percentage for the presence of tinnitus under Chapter 9 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th Ed) (the AMA Guides).
Included in the material before the Panel was an assessment of Mr Leigh Watson, audiologist, contained in a report dated 20 September 2022 which accompanied the plaintiff’s claim for an impairment benefit. Mr Watson concluded there was a 19% compensable binaural hearing loss (which included 5% for tinnitus). The Panel also had the report Dr T John Redhead arranged by the claims agent, who assessed the plaintiff’s work-related noise induced hearing loss at 7.9% which equated to 0% whole person impairment. Dr Redhead also gave no additional impairment for tinnitus.
The plaintiff challenged the assessment of Dr Redhead relied on by the claims agent. The Panel was constituted by Professor Andrew Sizeland. He will abide by the Court’s determination.[1]
[1]Letter dated 9 September 2024, see R v Australian…

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.

Continue reading Gray v Victorian WorkCover Authority

Details

AGLC: Gray v Victorian WorkCover Authority [2024] VSC 680
Case: [2024] VSC 680
Decision Date: 6 November 2024

CaseChat Overview and Summary

In the case of Gray v Victorian WorkCover Authority, the plaintiff, Gray, brought an action against the defendant, the Victorian WorkCover Authority, seeking compensation for injuries he sustained in a workplace incident. Gray claimed compensation for hearing loss and tinnitus, which resulted from the incident. The WorkCover Authority accepted that Gray had suffered hearing loss but rejected his claim for compensation in respect of tinnitus. The matter proceeded to a medical panel which assessed Gray's hearing loss and tinnitus in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). The panel concluded that Gray had a 0% impairment in respect of his hearing loss and 0% impairment for tinnitus. Gray challenged the panel’s decision, arguing that the panel had misapplied the AMA Guides.

The primary legal issue before the court was whether the medical panel had correctly applied the AMA Guides in assessing Gray's hearing loss and tinnitus. The court needed to determine if the panel had followed the correct methodology and if the assessment was in line with the statutory framework and relevant authorities. The plaintiff argued that the panel's assessment was incorrect, while the WorkCover Authority maintained that the panel's methodology and conclusions were appropriate. The court had to consider the authorities, including Scardamaglia v Amcor Pty Ltd & Anor, Amcor PLC v Scardamaglia, and Irwin v Victorian WorkCover Authority & Anor, to assess the correctness of the panel's decision.

The court examined the panel's application of the AMA Guides and found that the panel had correctly followed the prescribed methodology. The court noted that the AMA Guides provided a framework for the assessment and the panel had applied it appropriately. The court further held that the panel's conclusion regarding the 0% impairment for tinnitus was consistent with the evidence and applicable guidelines. The court found no error in the panel’s decision and dismissed the plaintiff’s claim for judicial review. Consequently, the proceeding was dismissed, and the WorkCover Authority’s decision stood affirmed.

Orders