Miller v Tom Condon Stone Masonry - [2023] NSWPICMP 578

DETERMINATION OF APPEAL PANEL
CITATION:	Miller v Tom Condon Stone Masonry [2023] NSWPICMP 578
APPELLANT:	Hayden Leonard Miller
RESPONDENT:	Tom Condon Stone Masonry
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Brian Williams
MEDICAL ASSESSOR:	Joseph Scoppa
DATE OF DECISION:	11 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal against hearing loss assessment of 8% whole person impairment; whether Medical Assessor (MA) able to make a deduction for exposure to dangerous noise after the deemed date pleaded; Held – injury date on referral incompatible with MA’s findings of fact; referral injury date appeared to be a typographical error; Medical Assessment Certificate revoked to correct date of injury given in the table 4 certificate; MA correct to make deduction for noise exposure after the deemed date; Schofield v Abigroup Ltd considered and applied; challenges to frequencies used and to tinnitus assessment open to MA.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 May 2023 Hayden Leonard Miller, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 May 2023.
The appellant 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 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 ground(s) 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 31 May 2023 the President’s delegate referred this matter for a WPI assessment of hearing loss caused by injury on a deemed date of 15 December 2003.
Mr Miller was engaged in noisy employment whilst employed by Tom Condon Stone Masonry (the respondent) either between 2001 and 2003, or 2003 and 2005, as will be discussed below. He has been self-employed since then and is still working as a landscaper. He moved to Victoria in 2019. He has noticed difficulty in hearing and ringing in his ears (tinnitus) for between 15 and 20 years. He has worn…

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: [2023] NSWPICMP 578
Decision Date: 11 October 2023

CaseChat Overview and Summary

In the case of Miller v Tom Condon Stone Masonry, the plaintiff sought compensation for hearing loss sustained during his employment. The primary dispute centered on the assessment of the plaintiff’s impairment and the methodology used by the Medical Assessor (MA) to calculate the percentage of whole person impairment attributable to the injury. The matter was heard in the Workers Compensation Court, where the plaintiff contested the MA’s decision to make a deduction for exposure to dangerous noise after the deemed date pleaded.

The central legal issues before the court were whether the MA was permitted to make a deduction for noise exposure after the date the plaintiff's injury was deemed to have occurred and whether there were any errors in the MA’s assessment of the plaintiff’s impairment. The plaintiff argued that the MA's findings of fact and the date of injury indicated in the Medical Assessment Certificate were inconsistent and questioned the validity of the deduction for noise exposure. The court had to determine if these contentions were justified and whether the MA's assessment was accurate and legally sound.

The court found that the injury date indicated on the referral was inconsistent with the MA’s findings and appeared to be a typographical error. Consequently, the court revoked the Medical Assessment Certificate to correct the date of injury as given in the table 4 certificate. The court held that the MA was correct in making a deduction for noise exposure after the deemed date, following the reasoning in Schofield v Abigroup Ltd. The court also found that the challenges to the specific frequencies used in the assessment and the assessment of tinnitus were open to the MA. The court upheld the MA’s methodology and findings, rejecting the plaintiff’s objections.

The final orders of the court included the revocation of the Medical Assessment Certificate to correct the date of injury, affirmation of the MA's methodology in assessing the plaintiff's impairment, and dismissal of the plaintiff's appeal against the assessment of hearing loss.

Orders