Irwin v Victorian WorkCover Authority - [2024] VSC 615

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 04648

CLARENCE WILLIAM IRWIN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	First Defendant
and
PROFESSOR ANDREW SIZELAND	Second Defendant

---

JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2024
DATE OF JUDGMENT:	9 October 2024
CASE MAY BE CITED AS:	Irwin v Victorian WorkCover Authority & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 615

---

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 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Sidiqi v Kotsios [2021] VSCA 187, Scardamaglia v Amcor Pty Ltd &Anor [2023] VSC 114, Amcor PLC v Scardamaglia [2023] VSCA 290 and Vicinity Centres Pty Ltd v Arik [2023] VSCA 295 considered – No error – Proceeding dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B McManamey	IDA Legal
For the First Defendant	R Kumar with E Golshtein	Russell Kennedy Lawyers
For the Second Defendant	No appearance

HIS HONOUR:

A Introduction

The plaintiff was born on 23 March 1952 and is presently 72 years of age.

He was employed as a labourer for about 33 years at CUB Pty Ltd (‘CUB’) until he retired in 2011.[1] He was exposed to noise in that employment, and seems to have first noticed hearing difficulties in the early 2000s.
[1]Joint court book (‘JCB’) 70.

The plaintiff’s hearing was tested about six times during his employment with CUB, which broadly revealed that his hearing was reducing over time.

On 28 January 2021, the plaintiff’s hearing was assessed by Mr Gary Fitzsimons, audiometrist. Mr Fitzsimons took a history of gradual onset of hearing loss symptoms over 25 years, as well as intermittent tinnitus over the past two years. Mr Fitzsimons assessed a whole person impairment of 11%; which took account of a 3.8% correction for age related hearing loss as well as a ‘loading’ of 2% for tinnitus. He recommended that the plaintiff be fitted with hearing aids, which he expected would assist with the plaintiff’s tinnitus by ‘masking its effects’ as well as ameliorating the effects of his hearing loss.[2]
[2]Ibid 98-103.

On 17 September 2021, the plaintiff claimed an impairment benefit in respect of ‘[n]oise induced hearing loss and tinnitus’.[3]
[3]Ibid 41-42.

The first defendant’s agent (‘agent’) referred the plaintiff for a hearing loss assessment by Dr T John Redhead, otorhinolaryngologist.

On 21 April 2022, Dr Redhead reported that the plaintiff had suffered ‘noise induced hearing loss’ of 8.7%, which equated to 0% whole person…

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 Irwin v Victorian WorkCover Authority

Details

AGLC: Irwin v Victorian WorkCover Authority [2024] VSC 615
Case: [2024] VSC 615
Decision Date: 9 October 2024

CaseChat Overview and Summary

The plaintiff sought judicial review of the decision of the first defendant to reject his claim for an impairment benefit in respect of tinnitus. The plaintiff’s claim for an impairment benefit was rejected on the basis that the medical panel had determined that there was no impairment in respect of tinnitus. The plaintiff contended that the Panel had erred in assessing 0% for tinnitus. In particular, the plaintiff submitted that the Panel had erred in – (a) relying upon the results of testing involving amplification; and (b) failing to consider matters other than speech discrimination. The court held that the plaintiff’s remaining ground of review must be rejected. It followed that the proceeding must be dismissed. The court would hear from the parties concerning the form of final orders.

Orders