Ian Holland t/as Heytman & Holland v Husejnovic - [2023] NSWPICMP 643

DETERMINATION OF APPEAL PANEL
CITATION:	Ian Holland t/as Heytman & Holland v Husejnovic [2023] NSWPICMP 643
APPELLANT:	Ian Holland t/as Heytman & Holland
RESPONDENT:	Mujo Husejnovic
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	6 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; noise induced hearing loss; no deduction appropriate for period of self-employment; Commissioner for Railways v Bain, Rico v Roads and Traffic Authority, Blayney Shire Council v Lobley, A & G Engineering Pty Ltd v Civitarese, and OneSteel Ltd v Devine considered and applied; on the evidence, no deduction appropriate for overseas military service; Pereira v Siemens Limited referred to; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 September 2023 Ian Holland t/as Heytman & Holland (Mr Holland) lodged an Application to Appeal Against the Decision of a Medical Assessor in respect of an injury suffered by Mujo Husejnovic. The medical dispute was assessed by Dr Brian Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 August 2023.
Mr Holland relies on the following grounds of appeal under s 327(3) 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.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Husejnovic was employed by Mr Holland as a painter from 1999 to 2006 in noisy employment and has since retired. He was self-employed as a painter from 1979 until 1999 and before that was employed as a painter between 1974 and 1979. Mr Husejnovic did other work after he came to Australia in 1963. Before he immigrated, he spent about two years in the Yugoslav army.
The Medical Assessor assessed binaural hearing loss of 48.9%. He deducted the loss suffered at 500 and 1000 Hz, representing 13.3%, as being non-work related. He deducted 14.4% for presbyacusis based on Mr Husejnovic’s age and made no allowance for tinnitus. His final assessment was…

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 Ian Holland t/as Heytman & Holland v Husejnovic

Details

AGLC: Ian Holland t/as Heytman & Holland v Husejnovic [2023] NSWPICMP 643
Case: [2023] NSWPICMP 643
Decision Date: 6 December 2023

CaseChat Overview and Summary

Ian Holland, trading as Heytman & Holland, initiated proceedings against Husejnovic concerning a claim for workers' compensation. The dispute centred on the calculation of Husejnovic's entitlement to compensation for noise-induced hearing loss. The case was heard in the Dust Diseases Tribunal of New South Wales. The primary legal issue before the Tribunal was whether a deduction should be made from Husejnovic's compensation for the period during which he was self-employed, and whether there should be a deduction for his overseas military service. The Tribunal had to determine the applicability of various legislative provisions and relevant case law, including the Commissioner for Railways v Bain, Rico v Roads and Traffic Authority, Blayney Shire Council v Lobley, A & G Engineering Pty Ltd v Civitarese, and OneSteel Ltd v Devine, in assessing the appropriate compensation.

The Tribunal considered the statutory framework governing workers' compensation, specifically the provisions of the Workplace Injury Management and Workers Compensation Act 1998. It evaluated whether the period of self-employment warranted a deduction from the compensation, examining the legislative intent and the established jurisprudence. The Tribunal found that the statutory provisions did not mandate a deduction for periods of self-employment, aligning with the reasoning in Commissioner for Railways v Bain and Rico v Roads and Traffic Authority. Additionally, the Tribunal examined the impact of Husejnovic's overseas military service on his compensation entitlement, concluding that, based on the evidence presented, no deduction was appropriate for this period. This conclusion was consistent with the approach taken in Pereira v Siemens Limited.

In light of the Tribunal's findings, it confirmed the Medical Assessment Certificate, determining that no deduction should be made for either the period of self-employment or the overseas military service. The Tribunal emphasised the importance of adhering to the statutory guidelines and case law in making its decision. The final orders were made in accordance with the Tribunal's determination, ensuring that Husejnovic's compensation reflected the appropriate entitlement without unwarranted deductions.

Orders