Rivalea (Australia) Pty Ltd v Price

DETERMINATION OF APPEAL PANEL
CITATION:	Rivalea (Australia) Pty Ltd v Price [2025] NSWPICMP 447
APPELLANT:	Rivalea (Australia) Pty Ltd
RESPONDENT:	Price
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Dr Henley Harrison
MEDICAL ASSESSOR:	Dr Thandayan Raj
DATE OF DECISION:	24 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) assessed 12% whole person impairment (WPI) for hearing loss with no deduction under section 232; Held – history obtained was not an amendment of applicant’s statement; grounds of appeal not established; MAC confirmed.

WORKERS COMPENSATION DIVISION

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

Matter number:	M1-W29012/24
Appellant:	Rivalea (Australia) Pty Ltd
Respondent:	Stephen James Price
Date of decision:	24 June 2025
Appeal Panel:
Member:	Carolyn Rimmer
Medical Assessor:	Henley Harrison
Medical Assessor:	Thandavan Raj

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 March 2025 Rivalea (Australia) Pty Ltd (the appellant) 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
4 March 2025.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Price suffered an injury, namely, a bilateral sensorineural loss of hearing resulting from exposure to loud noise in his employment with the appellant deemed to have occurred on
27 November 2015.
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 21 November 2024 in which he claimed lump sum compensation in respect of the hearing loss.
A teleconference was held on 11 February 2025 in which Member Kathryn Camp, made orders by consent, including:
"3. By 11 February 2025, by consent, the applicant is to lodge and serve an
amended statement under cover of an Application to Lodge Additional
Documents. The statement is to be amended to correct three typographical
errors in relation to the applicant’s employment, in paragraphs [7] and [8] of the
statement dated 30 July 2024, attached to the Application to Resolve a Dispute.
No further amendments will be made to the applicant’s statement evidence.
Notations:
A. The Medical Assessor is to consider the application of s 323 of the
Workplace Injury Management and Workers Compensation Act 1988, in the assessment of the applicant’s permanent impairment."
On 12 February 2025 the Referral for Assessment of Permanent Impairment to Medical Assessor was made to Medical Assessor Robert Payten. The brief to the Medical Assessor was to include the Application and attached documents, the Reply and attached documents, Application to Lodge Additional Documents filed by the applicant on 11 February 2025, attaching an amended statement of the applicant and the Certificate of Determination – Consent Orders issued by the Member dated 11 February 2025.
The Medical Assessor examined the appellant on 27 February 2025 and assessed 12% WPI. He made no deduction pursuant to s 323 of the 1998 Act for extra jurisdictional occupational noise exposure.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that Mr Price be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Price to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Mr Price was exposed to noise for about 34 years. The details are contained in Mr Price’s signed statement dated 30 July 2024 (ARD 2- 3) and unsigned "Amended Applicant Statement" lodged on 11 February 2025. In summary, these disclose the following history of 'noisy' work with Rivalea Pty Ltd, where Mr Price was employed as a Stock Person from 1989 until 27 November 2015 (26 years) and DCFC Structure as a Dispatch Manager from 1981 until 1989 in Victoria (8 years).
(b)    The employment with DCFC Structure was in the State of Victoria, and a deduction pursuant to s 323 of the 1998 Act ought to have been considered.
(c)    An "Amended Applicant Statement" was lodged on 11 February 2025. Paragraphs 7 and 8 refer to employment by DCFC Structure in Victoria as a Dispatch Manager from 1981 until 1989.
(d)    On 4 March 2025 a MAC was issued assessing 12% WPI. The MAC made no deduction pursuant to s 323 of the 1998 Act for Mr Price’s employment in the Victoria with DCFC Structure from 1981 until 1989. The MAC did otherwise make a deduction under s 323 on presently irrelevant grounds.
(e)    Under “Summary of demonstrable errors, incorrect criteria, denial of procedural fairness” the following were listed:
(a)undertaking an investigation into factual matters outside the powers or functions residing in the Medical Assessor;
(b)making findings of fact without legal authority;
(c)making findings of fact contrary to the Consent Orders issued by a Member of the Commission on 11 February 2025;
(d)making findings of fact contrary to the terms of the Referral issued by the President's delegate on 12 February 2025;
(e)denying the appellant procedural fairness, by altering the evidence which had been agreed and directed to form the factual foundation for assessment of WPI;
(f)acting in excess of jurisdiction by refusing to obey the directive that after the lodging of an amended statement no further amendments will be made to the applicant’s statement evidence, and
(g)failing to determine the extent of deduction pursuant to s 323 of the 1998 Act on account of employment in Victoria with DCFC Structure from 1981 until 1989, which was the subject of cogent evidence the Medical Assessor was tasked and bound to consider.
(f)    The matters enumerated under the heading "Summary of demonstrable errors, incorrect criteria, denial of procedural fairness" will be evident from perusal of the background and chronology, with particular emphasis upon the orders made on 11 February 2025 and the interactions between Mr Price and the Medical Assessor on the day of the assessment.
(g)    Left as it stands, this matter would constitute an outcome inconsistent with the principles of procedural fairness. Applicants would be at liberty to present one case to respondents, then without notice present an entirely different “case” to Medical Assessors, followed by their enforcing "entitlements" flowing from a MAC, with impunity. This scenario would contradict the requirements of natural justice, as well as statutory imperatives, which include:
(i)promoting public confidence in the decision-making of the Commission: s 3 (e) of the Personal Injury Commission Act 2020 (PIC Act);
(ii)the provision of a workers compensation system that is "fair, affordable, and financially viable": s 3 (e) of the 1998 Act;
(iii)the obligation of parties and their lawyers to co-operate with the Commission to give effect to the guiding principle set forth in section 42 of the PIC Act. It must be acknowledged that what occurred in the Medical Assessment examination constituted conduct, viewed objectively, which was in defiance of the Commission's order of 11 February 2025 that: "No further amendments will be made to the applicant’s statement evidence", and
(iv)the pre-litigation requirement that injured workers provide relevant particulars about a claim, including as to any previous 'injury', within the meaning of s 282(1) (c) of the 1998 Act. The effectiveness of this provision would be thwarted if admissions such as those made in this case could be withdrawn without notice at a Medical Assessment examination.
(h)    If this Appeal proceeds to be determined by the MAP, culminating in the issue of a fresh MAC, the task should be carried out on the basis of Mr Price’s statement evidence as at 11 February 2025 (there having been no application under section 57 of the PIC Act to revoke the order made on 11 February 2025 placing an embargo on any further Statement evidence) and the decisions in Camden Council v Harle [2022] NSWPICMP 339 and Cuskelly v New England Milk Industries [2020] NSWWCCMA 2.
The respondent’s submissions include the following:
(a)     The appellant submits the Medical Assessor acted outside the scope of the referral by clarifying the alleged noise exposure with the earlier Victorian employer.
(b)    Mr Price did not file a signed amended statement. Member Camp ordered an amended statement was to be filed to correct three typographical errors at paragraphs [7] and [8]. The unsigned amended statement underlined two changes of date and one confirming the earlier employer was in Victoria.
(c)    However, Mr Price told the Medical Assessor that he was not aware of the amended statement and told the Medical Assessor there were a few factual errors in the original and amended statements – namely:
(i)the Victorian employer was “PFC Shop Fitters” not “DCFC Structure”;
(ii)he worked in an office on a mezzanine level above the factory floor;
(iii)the door to the office was always shut and there was a proper solid partition between the office and the factory floor below, and
(iv)he went into the factory for approximately one hour per day and was exposed to the noise of a bandsaw.
(d)    The employer’s IME, Dr Howison in his report dated 15 May 2024 made similar enquiries of the alleged noise exposure with the earlier Victorian employer:
“Mr Price was previously employed from 1981-1989 in Victoria at DCFC Structure as Dispatch Manager in an office environment and was not exposed to loud noise”. [Reply page 9]
(e)    Accordingly, the Medical Assessor did not undertake an investigation into factual matters outside the evidence. The history recorded and accepted by Dr Howison was sufficient evidence to find there was no exposure to loud noise in Victoria. The Medical Assessor merely clarified the history of no noisy exposure in Victoria recorded by Dr Howison.
(f)    Mr Price’s signed statement and unsigned amended statement do not constitute the totality of the factual evidence.
(g)    The above history recorded by Dr Howison also forms part of the factual evidence. It was reasonable for the Medical Assessor to clarify the alleged noise exposure in Victoria, especially as Mr Price had “no recent input into an amended statement”. [MAC page 5]
(h)     The Medical Assessor further noted: “Item 7 says that prior to Rivalea he was employed by DCFC Structure in Victoria whereas the name of the company was PFC. He says the statement that he was exposed to noise from saws and the general factory noises is incorrect. He says that he was not exposed to noise in that job for more than one hour per day and not for about five hours per day as stated in the statement…” [MAC page 5]
(i)    Accordingly, there was no denial of procedural fairness to the appellant as
Dr Howison recorded a similar history to the Medical Assessor of the earlier Victorian employment.
(j)    There was no finding of fact contrary to the referral. No further statement was made by the worker. The Medical Assessor merely confirmed Dr Howison recorded a correct history of no prior noisy employment in Victoria.
(k)    The appellant’s grounds of appeal must be dismissed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

Section 323 Deduction

The Appeal Panel have reviewed the MAC and the evidence in this matter.
The Medical Assessor noted on page 1 of the MAC that there was application to lodge additional documents filed by the applicant on 11 February 2025 attaching an amended statement of the applicant.
The Medical Assessor under “Work history including previous work history if relevant” [MAC page 2] wrote:
“He retired in 2015 and has been exposed to no noise since that time.
His last employer was Rivalea (Australia) Pty Ltd where he worked from October 1989 to November 2015 over a period of 26 years. He worked in a large piggery of about 25 sheds with 250,000 pigs distributed between these sheds. Each shed was very noisy. He worked mainly in the farrowing sheds where piglets were born and weaned at four weeks. There was a lot of noise from the piglets wanting to suckle and also a lot of noise from the sows especially at feed time. The level of noise was such that he had to raise the voice to be heard at a distance of 1 metre by a young person with good hearing who was not wearing hearing protection at that time.
This level of noise indicates that the noise levels were in the region of 90 dBA and capable of noise-induced hearing loss for longer than two hours of exposure per day. He worked mostly eight hours a day but sometimes up to nine works a day and worked a nine-day fortnight. In the early days of his employment, he did a lot of overtime.
He did not usually wear hearing protection as he found very early on that the ear muffs were uncomfortable and hot and that feed mites would lodge between the muff and the ear and sometimes enter his ear canal. He was also exposed to the noise of guns as he had to shoot injured animals regularly without hearing protection.
From the history obtained, Rivalea was his last noisy employer.
Prior to that he was employed by PFC Shop Fitters in Melbourne. He worked there from 1981 to 1989 over an eight-year period as a dispatch manager. He worked in an office which was on a mezzanine level above the factory floor. The door to the office was always shut and there was a proper solid partition between the office and the factory floor below. He used to go into the factory for approximately one hour per day and was there exposed to the noise of a bandsaw. During this time it was necessary to raise the voice to be heard at a distance of 1 metre, indicating that the noise was in the region of 90 dBA and capable of causing hearing loss after more than 2 hours exposure in any one day. However, because the noise was only for one hour per day, it was not sufficient to cause hearing loss.
For the other seven hours of his eight-hour working day, he was in the office, sometimes going out and supervising the loading of trucks which was not a noisy event. He denies being exposed to any noise while working for PFC.”
The Medical Assessor at part 8 of the MAC [MAC page 4] wrote:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Hearing”.
In commenting on the other medical opinions and findings submitted by the parties and, where applicable the reasons why his opinion differed, the Medical Assessor wrote [MAC page 5]:
“I went over the amended applicant’s statement with Mr Price and he identified several errors. The statement was dated 11 February 2025 yet he says he has had no recent input into an amended statement. Item 6 states that he was provided with hearing protection which he wore when it was safe to do so. He says that he wore hearing protection only for a short time when he started work with Rivalea but because of the ear muffs being so hot and because mites used to get between the ear muff and his skin, he ceased wearing hearing protection.
Item 7 says that prior to Rivalea he was employed by DCFC Structure in Victoria whereas the name of the company was PFC. He says the statement that he was exposed to noise from saws and general factory noises is incorrect. He says that he was not exposed to noise in that job for more than one hour per day and not for about five hours per day as stated in the statement. He had to raise his voice to be heard at a distance of 1 metre for only one hour per day. For the other seven hours of the day, he was in an office which was not directly connected to the factory area and was not noisy.
Item 8 is incorrect in that he was employed by only one employer prior to PFC and not various employers…
Dr Fagan deducted 4.32% under section 323 (2) for noisy work done in Victoria while employed by PFC. As I have noted in the work history, he was not exposed to any noise greater than one hour per day while employed for that company and this would have not been sufficient noise to cause any hearing loss. I have therefore not subtracted anything under 323 (2).
I note the audiogram performed by Dr Ken Howison on 10 May 2024. The responses to audiometric testing given by Mr Price on that day were much the same as that given to me today as Dr Howison found a total binaural hearing impairment of 61.3% as compared to my finding of 64.6%. Dr Howison deducted only 1% for severe tinnitus as compared to my deduction of 2%. He found that Mr Price had constant tinnitus that interfered with his sleep induction but did not interfere with concentration during the day as I have also found.
Dr Howison found as I did that Mr Price was not exposed to loud noise while employed in Victoria between 1981 and 1989. Dr Howison also says he was employed by DCFC whereas Mr Price says that should be PFC.”

In his signed statement dated 30 July 2024 [ARD page 2] the applicant wrote:
“6.     During my employment with Rivalea Pty Ltd I was exposed to noise from thousands of pigs in the piggery, trucks coming in and out and general farm noises. I was provided with hearing protection which I wore when it was safe to do so. I generally worked 5 days per week and 8 hours per day. I was exposed to noise for the whole day. The noise at work was such that I had to raise my voice to communicate with a co-worker standing about a metre away from me.
7.      Prior to this I was employed by DCFC Structure as a Dispatch Manager from 1989 until 1997. During my employment with DCFC Structure, I was exposed to noise from saws and general factory noises. I was not provided with hearing protection. I generally worked 5 days per week and 8 hours per day. I was exposed to noise for about 5 hours per day. The noise at work was such that I had to raise my voice to communicate with a co-worker standing about a metre away from me.
8.      Prior to this I was employed by various employers as a sales office clerk/ manager from 1971 until 1989. During my employment with these employers, I was not exposed to noise as these were office roles.”
A Second Statement by Mr Price was lodged on 11 February 2025. The statement dated
11 February 2025 reads as follows:
“1) I refer to my statement dated 30 July 2024. There are some errors in my
statement, and I correct them as follows:
a. Regarding Paragraph 7, the first sentence should read:
‘Prior to this I was employed by DCFC Structure in Victoria as a
Dispatch Manager from 1981 to 1989.’
b. Regarding Paragraph 8, the first sentence should read:
‘Prior to this I was employed by various employers as a sales office clerk/manager from 1971 until 1981’.”
An Amended Statement by Mr Price was also lodged on 11 February 2025. The statement dated 11 February 2025 [ALAD page 2] contains the following:
“During my employment with Rivalea Pty Ltd I was exposed to noise from thousands of pigs in the piggery, trucks coming in and out and general farm noises. I was provided with hearing protection which I wore when it was safe to do so. I generally worked 5 days per week and 8 hours per day. I was exposed to noise for the whole day. The noise at work was such that I had to raise my voice to communicate with a co-worker standing about a metre away from me.
7. Prior to this I was employed by DCFC Structure in Victoria as a Dispatch Manager from 1981 until 1989. During my employment with DCFC Structure, I was exposed to noise from saws and general factory noises. I was not provided with hearing protection. I generally worked 5 days per week and 8 hours per day. I was exposed to noise for about 5 hours per day. The noise at work was such that I had to raise my voice to communicate with a co-worker standing about a metre away from me.
8. Prior to this I was employed by various employers as a sales office clerk/ manager from 1971 until 1981. During my employment with these employers, I was not exposed to noise as these were office roles.”
Dr Fagan, consultant ENT surgeon, in a report dated 7 March 2024 [ARD page 18] wrote:
“Noisy Employment Outside NSW
Mr Price advised me he worked 9 years in Victoria in noisy conditions. He specifically recalls noticing hearing loss during his lengthy period of noisy extraterritorial employment. Accordingly, in the absence of an audiogram performed from that time, I believe a 10% deduction under section 323 is warranted”.
Dr Fagan noted that during employment with DCFC Mr Price was exposed to noise from saws and general factory noise. He wrote:
“No hearing protection provided. He described having to generally raise his
voice in order to communicate at a distance of one metre which is indicative of ambient noise levels in excess of 90dB*. More than 2 hours of such exposure would be hazardous to a person’s hearing. He worked 5 days per week, 8 hours daily. He was exposed to noise for 5 hours daily.”
Dr Kenneth Howison, consultant ENT surgeon, in a report dated 15 May 2024 [Reply page 8] under Employment History wrote:
“Mr Price was previously employed from 1981-1989 in Victoria at DCFC Structure as Dispatch Manager in an office environment and was not exposed to loud noise.
From 1971-1989, he was Sales Manager for various employers and was not exposed to loud noise.”
The appellant submits that in addition to the grounds of appeal within the meaning of s 327(3) (c) and (d) of the 1998 Act, the MAC was made “in excess of jurisdiction or functions properly exercisable by the Medical Assessor” and was carried out in a manner giving rise to a “wholesale denial of procedural fairness”.
The appellant’s summary of errors, incorrect criteria, denial of procedural fairness is a follows:
(a)    undertaking an investigation into factual matters outside the powers or functions residing in the Medical Assessor;
(b)    making findings of fact without legal authority;
(c)    making findings of fact contrary to the Consent Orders issued by a Member of the Commission on 11 February 2025;
(d)    making findings of fact contrary to the terms of the Referral issued by the President's delegate on 12 February 2025;
(e)    denying the Appellant procedural fairness, by altering the evidence which had been agreed and directed to form the factual foundation for assessment of WPI;
(f)    acting in excess of jurisdiction by refusing to obey the directive that after the lodging of an amended statement no further amendments will be made to the applicant’s statement evidence, and
(g)    failing to determine the extent of deduction pursuant to s 323 of the 1998 Act on account of employment in Victoria with DCFC Structure from 1981 until 1989, which was the subject of cogent evidence the Medical Assessor was tasked and bound to consider.
The first matter is the undertaking of an investigation into factual matters outside the powers or functions residing in the Medical Assessor. The Appeal Panel notes that the appellant does not clearly specify what factual matters were “investigated by the Medical Assessor”. However, taking into account the appellant’s submissions as a whole, the Appeal Panel assumes that the factual matter referred to is the number of hours Mr Price stated that he was exposed to noise in his employment with DCFC Structure in Victoria.
The Appeal Panel notes that the appellant did not identify any legislative provisions or provisions in the Guidelines relating to the powers and functions of Medical Assessor.
Section 322(1) of the 1998 Act provides:
“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”
The Guidelines at Part 1.47 provides:
“1.46 A report of the evaluation of permanent impairment should be accurate, comprehensive and fair. It should clearly address the question(s) being asked of the assessor. In general, the assessor will be requested to address issues of:
• current clinical status, including the basis for determining maximum medical improvement
• the degree of permanent impairment that results from the injury/condition, and
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if applicable.
1.47 The report should contain factual information based on all available medical information and results of investigations, the assessor’s own history-taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor’s report.”
The Appeal Panel is satisfied that the Medical Assessor under Paragraph 1.47 of the Guidelines is required to take a history, conduct a clinical examination as well as review all available medical information and results of investigations, and that is precisely what the Medical Assessor did in this matter.
Further, there is a clear distinction between a medical history obtained by the Medical Assessor and the making of a further statement by Mr Price or the amendment of the statement made dated 11 February 2025. In our view, a history obtained by the Medical Assessor is not a statement of evidence by a worker.
The Appeal Panel does not accept that the Medical Assessor undertook an investigation into factual matters outside the powers or functions that he had. This ground of appeal is not made out.
The second matter argued is the making of findings of fact without legal authority. The Appeal Panel notes that the appellant did not identify what findings of fact were made without legal authority. In so far as the Medical Assessor accepted the history given by Mr Price during this examination and found Mr Price was not exposed to any noise greater than one hour per day while employed for DCFC in Victoria and this would have not been sufficient noise to cause any hearing loss, this was, in the view of the Appeal Panel, a finding that the Medical Assessor was able to make after considering the evidence in the matter. This ground of appeal is not made out.
The third matter argued is the making of findings of fact contrary to the Consent Orders issued on 11 February 2025. The Appeal Panel notes that the appellant does not precisely identify what the appellant says were the findings of fact were contrary to particular orders.
The consent orders (consent orders) issued on 11 February 2025 were as follows:
“By and with the consent of the parties the Commission;
Determines:
1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 27 November 2015 – Deemed
(b) Body systems / parts:
(i) Hearing Loss
(c) Method of Assessment: Whole Person Impairment
2. The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute, dated 21 November 2024, and attached documents;
(b) Reply to Application to Resolve a Dispute, dated 11 December 2024, and attached documents, and
(c) Application to Lodge Additional Documents, to be lodged by the applicant on 11 February 2025, attaching an amended statement of the applicant.
Directs:
3. By 11 February 2025, by consent, the applicant is to lodge and serve an amended statement under cover of an Application to Lodge Additional Documents. The statement is to be amended to correct three typographical errors in relation to the applicant’s employment, in paragraphs [7] and [8] of the statement dated 30 July 2024, attached to the Application to Resolve a Dispute. No further amendments will be made to the applicant’s statement evidence.
Notations:
A. The Medical Assessor is to consider the application of s 323 of the Workplace Injury Management and Workers Compensation Act 1988, in the assessment of the applicant’s permanent impairment.”
The Appeal Panel does not consider that there were any findings of fact in the consent orders, apart from the date of injury, body part or system to be assessed and method of assessment. The consent orders merely identify the documents to be reviewed by the Medical Assessor. The consent orders include a direction that Mr Price lodge and serve an amended statement in order to correct three typographical errors in relation to Mr Price’s employment in paragraphs 7 and 9 of his statement dated 30 July 2024. The direction then provides that no further amendments will be made to the applicant’s statement evidence. There is a notation that the Medical Assessor is to consider the application of s 323 of the 1998 Act in the assessment of permanent impairment.
There is no finding made concerning the actual evidence as set out in the applicant’s statement. The parties have not filed an agreed statement of facts. The various statements by the applicant are part of the evidence to be taken into account by the Medical Assessor in making his assessment of permanent impairment.
The Appeal Panel does not accept that the Medical Assessor made findings of fact contrary to the Consent Orders issued on 11 February 2025. This ground of appeal is not made out.
The fourth matter argued is the alleged making findings of fact contrary to the terms of the Referral issued by the President's delegate on 12 February 2025 (the referral).
The terms of the referral were as follows:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the nature and extent of hearing loss suffered by a worker (s319(e))
 the degree of permanent impairment of the worker as a result of an injury (s319(c))
 whether any proportion of permanent impairment is due to any previous injury or preexisting condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 27 November 2015 - deemed
Body part/s referred: Hearing loss
Method of assessment: Whole person impairment
2. BRIEF
The brief provided to the Medical Assessor includes:
1. the Application and attached documents
2. the Reply and attached documents
3. Application to Lodge Additional Documents filed by the applicant on 11 February
2025, attaching an amended statement of the applicant.
4. The Certificate of Determination – Consent Orders issued by the member dated
11/2/25.
3. ARRANGEMENTS
The President’s Delegate has chosen Medical Assessor (s321(2)):
Dr Robert Payten – Sydney”
The appellant has not specified what findings were made by the Medical Assessor that were contrary to the terms of the referral. The Appeal Panel cannot identify any finding made by the Medical Assessor that is contrary to the terms of the referral. This ground of appeal is not made out.
The fifth matter argued is a denial of procedural fairness to the appellant, by altering the evidence which had been agreed and directed to form the factual foundation for assessment of WPI.
The Appeal Panel rejects the submission that the Medical Assessor altered the evidence. What the Medical Assessor did was to take a history that differed in some respects from the history given by Mr Price in his various statements and to Dr Fagan, but that does not amount to an alteration of the evidence. The history obtained by the Medical Assessor was inconsistent (in relation to the number of hours of exposure to noise in the employment with DCFC in Victoria) with the history given by Mr Price to Dr Fagan and in Mr Price’s statements. The problem with the appellant’s submission, in our view, is that the evidence (and we assume by that the appellant means the statement dated 11 February 2025) was not directed to form the factual foundation for assessment of WPI. It was not an agreed statement of facts. The statements were a part of the evidence to be reviewed by the Medical Assessor together with the history obtained by the Medical Assessor and findings from the clinical examination as well as a review all available medical information and results of investigations.
In terms of a denial of procedural fairness, the Appeal Panel rejects this submission. The history recorded by Dr Howison is part of the factual evidence. It was reasonable in considering the question of a deduction pursuant to s 323 of the 1998 Act for the Medical Assessor to clarify the alleged noise exposure in Victoria. Dr Howison recorded a history that Mr Price was not exposed to loud noise in Victoria. Accordingly, there was no denial of procedural fairness to the appellant as Dr Howison recorded a similar history to the Medical Assessor of the earlier Victorian employment. This ground of appeal is not made out.
The sixth matter argued is that the Medical Assessor acted in excess of jurisdiction by refusing to obey the directive that after the lodging of an amended statement no further amendments will be made to the applicant’s statement evidence. As noted above, the Appeal Panel do not accept that the Medical Assessor amended that statement of Mr Price. The Medical Assessor took his own history from Mr Price as he was required to do in accordance with paragraph 1.47 of the Guidelines. The fact that the history obtained by the Medical Assessor was different in some respects from parts of Mr Price’s statement dated
11 February 2025 does not amount to an amendment of that statement.
The directive in the consent orders that after the lodging of an amended statement no further amendments will be made to Mr Price’s statement evidence applies in our view only to statements made by Mr Price. As noted above the statement was not part of an agreed statement of facts between the parties. The Appeal Panel does not accept that the Medical Assessor acted in excess of jurisdiction refusing to obey the directive that after the lodging of an amended statement no further amendments will be made to the applicant’s statement evidence. This ground of appeal is not made out.
The seventh matter argued is the failure by the Medical Assessor to determine the extent of deduction pursuant to s 323 of the 1998 Act on account of employment in Victoria with DCFC Structure from 1981 until 1989, which was the subject of cogent evidence the Medical Assessor was tasked and bound to consider.
The Medical Assessor considered the question of whether a deduction should be applied on account of employment in Victoria from 1981 to 1989. The Medical Assessor went over the amended statement with Mr Price and noted that Mr Price identified several errors. The Medical Assessor wrote:
“The statement was dated 11 February 2025 yet he says he has had no recent input into an amended statement. Item 6 states that he was provided with hearing protection which he wore when it was safe to do so. He says that he wore hearing protection only for a short time when he started work with Rivalea but because of the ear muffs being so hot and because mites used to get between the ear muff and his skin, he ceased wearing hearing protection.
Item 7 says that prior to Rivalea he was employed by DCFC Structure in Victoria whereas the name of the company was PFC. He says the statement that he was exposed to noise from saws and general factory noises is incorrect. He says that he was not exposed to noise in that job for more than one hour per day and not for about five hours per day as stated in the statement. He had to raise his voice to be heard at a distance of 1 metre for only one hour per day. For the other seven hours of the day, he was in an office which was not directly connected to the factory area and was not noisy.
…
Dr Fagan deducted 4.32% under section 323 (2) for noisy work done in Victoria while employed by PFC. As I have noted in the work history, he was not exposed to any noise greater than one hour per day while employed for that company and this would have not been sufficient noise to cause any hearing loss. I have therefore not subtracted anything under 323 (2).”
The Medical Assessor clearly did determine the question of whether a deduction should be applied on account of employment in Victoria from 1981 to 1989. The Medical Assessor determined, based on the history that he had obtained from Mr Price and Dr Howison’s report, that no deduction should be made in respect of the employment in Victoria from 1981 to 1989. This was a matter for the Medical Assessor to determine and part of what he was required to determine under paragraph 1.6 of the Guidelines. Further, the Medical Assessor clearly did consider the “cogent evidence” referred to by the appellant, that is, the various statements of Mr Price and the report of Dr Fagan. The Appeal Panel finds no error nor an application of incorrect criteria by the Medical Assessor in his consideration of whether a deduction should be applied on account of employment in Victoria from 1981 to 1989. It was a matter for the Medical Assessor to determine this question and the weight that he placed on the evidence that he considered, including the history that he obtained from Mr Price. This ground of appeal is not made out.

The appellant argued that to leave the matter as it stands would constitute an outcome inconsistent with the principles of procedural fairness. As noted above the Appeal Panel is not persuaded that there was a lack of procedural fairness. The respondent also submitted that what had occurred would contradict the statutory imperatives, which include:
(a) promoting public confidence in the decision-making of the Commission: s 3 (e) of the PIC Act;
(b) the provision of a workers compensation system that is "fair, affordable, and financially viable": s 3 (e) of the 1998 Act;
(c) the obligation of parties and their lawyers to co-operate with the Commission to give effect to the guiding principle set forth in s 42 of the PIC Act. It must be acknowledged that what occurred in the Medical Assessment examination constituted conduct, viewed objectively, which was in defiance of the Commission's order of 11 February 2025 that: "No further amendments will be made to the applicant’s statement evidence", and
(d) the pre-litigation requirement that injured workers provide relevant particulars about a claim, including as to any previous 'injury', within the meaning of s 282(1) (c) of the 1998 Act. The effectiveness of this provision would be thwarted if admissions such as those made in this case could be withdrawn without notice at a Medical Assessment examination.
The Appeal Panel is not persuaded that any of the matters raised by the respondent contradict the statutory imperatives listed above. The Medical Assessor made an assessment that was in accordance with the Guidelines, which included taking a history from Mr Price. There was no conduct by the Medical Assessor that was “in defiance” of the consent orders dated 11 February 2025. The fact that some details in his history were not consistent with Mr Price’s evidence in earlier statements or the history given to Dr Fagan may possibly have been relevant to a consideration of whether the MAC contained findings that were glaringly improbable or an argument that the actual path of reasoning was not spelt out. However, those were not matter raised by the appellant on appeal.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 March 2025 should be confirmed.

[2025] NSWPICMP 447

24 June 2025