Le v F Muller Pty Limited - [2022] NSWPICMP 41

DETERMINATION OF APPEAL PANEL
CITATION:	Le v F Muller Pty Limited [2022] NSWPICMP 41
APPELLANT:	Nhut Duy Le
RESPONDENT:	F Muller Pty Limited
APPEAL PANEL:	Member William Dalley Dr Joseph Scoppa Dr Brian Williams
DATE OF DECISION:	10 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Allegation of demonstrable error by Medical Assessor in determining that the appellant was not exposed to noise the nature of which his injury was due; the respondent conceded error; Held- error established; Pereira v Siemens Ltd applied; appellant worker assessed in respect of 4 kHz and 3 kHz as resulting from exposure to noise in the workplace on the balance of probabilities; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 December 2021 Nhut Duy Le lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Payten, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 2021.
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 delegate 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
This matter was assessed under the table of disabilities.

RELEVANT FACTUAL BACKGROUND

Nhut Duy Le, the appellant, worked in noisy employment in New South Wales from late 1986 to November 1990 as a process worker, employed by the respondent, F Muller Pty Ltd. He undertook no other noisy employment in New South Wales.
Mr Le left the workforce in 1997 at the age of 49. In 2011 he consulted a medical practitioner complaining of hearing difficulty. Mr Le did not pursue any remedy at that time.
In September 2020 Mr Le’s hearing was assessed by an ear nose and throat specialist,
Dr Thandavan Raj at the request of Mr Le’s solicitors. Dr Raj reported a history of noisy employment in Vietnam as a civil engineer and subsequently with the respondent over a period recorded as from 1987 to 1993. Dr Raj assessed Mr Le as having 20% binaural hearing impairment (BHI) as a result of what he believed to be 23 years of exposure to noisy employment.
Mr Le’s legal representatives made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act), in accordance with Dr Raj’s assessment.
Mr Le was seen by Dr Peter Winkler, Ear, Nose and Throat specialist, at the request of…

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: [2022] NSWPICMP 41
Decision Date: 10 March 2022

CaseChat Overview and Summary

Le v F Muller Pty Limited involved a dispute between a worker, Le, and the respondent employer, F Muller Pty Limited. The worker sought to overturn a Medical Assessment Certificate that stated his injury was not due to exposure to noise in the workplace. The respondent conceded that an error had been made in the assessment, but contested the extent of the error. The case was heard in the Industrial Court of New South Wales.

The primary legal issue was whether the Medical Assessor had made a demonstrable error in concluding that the worker's injury was not caused by exposure to noise in the workplace. The court had to determine whether the error was such that it warranted the revocation of the Medical Assessment Certificate and if the worker's injury was, on the balance of probabilities, caused by workplace exposure to noise. The court referred to previous case law, specifically Pereira v Siemens Ltd, to assist in its reasoning.

The court found that the Medical Assessor had indeed made a demonstrable error in the assessment. The error was significant enough to warrant the revocation of the Medical Assessment Certificate. The court applied the principles from Pereira v Siemens Ltd, which held that a demonstrable error could be established even if the error was not obvious on the face of the assessment. The court concluded that the worker's injury at 4 kHz and 3 kHz was, on the balance of probabilities, due to workplace exposure to noise.

The court ordered the revocation of the Medical Assessment Certificate, finding that the worker's injury was caused by exposure to noise in the workplace. The respondent's concession of error supported this decision. The court's ruling underscored the importance of accurate assessments in workers compensation cases and the potential consequences of demonstrable errors in such assessments.

Orders