McGowan v Secretary, Department of Education and Communities

In this matter, the applicant, McGowan, sought compensation for a lump sum for binaural hearing loss, specifically boilermaker’s deafness, from the respondent, Secretary, Department of Education and Communities. The dispute centred on the nature and extent of McGowan's hearing loss and whether it was caused by his employment. The case was heard in the Workers Compensation Commission of New South Wales.

The primary legal issues addressed by the court were the role of the Commission and Approved Medical Specialists in disputes concerning the causation and extent of boilermaker’s deafness, the impact of a finding that employment was to the nature of which the injury was due, and the appropriate process for further medical assessment in light of an invalid Medical Assessment Certificate. The court examined statutory provisions from the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998, including sections 293, 319, 321, 326, and 329. The court also considered the procedural requirements for referrals to Approved Medical Specialists and the implications of an interlocutory versus final order.

The court concluded that the initial assessment of McGowan's hearing loss was flawed and required a re-assessment by an Approved Medical Specialist. It determined that the employer’s liability for the injury was contingent on the nature of McGowan's employment. The court found that the initial assessment by Dr Henley Harrison was invalid, necessitating a further assessment to accurately determine the extent of McGowan's hearing loss and the need for hearing aids. The court ruled that the original orders were interlocutory and required a re-determination by a different Arbitrator following the new assessment. Additionally, the court extended the time for appeal and ordered the employer to cover the costs of the appeal.

The court’s final orders included amending the respondent’s name, extending the time for appeal, revoking certain initial orders, and referring the assessment of McGowan’s hearing loss to Dr Henley Harrison for re-assessment. The claim for reimbursement of hearing aid costs was remitted to a different Arbitrator for re-determination post-assessment. The court also ordered the employer to pay McGowan’s costs of the appeal.