Robertson v D.J Ellis & D.W Ellis

DETERMINATION OF APPEAL PANEL
CITATION:	Robertson v D.J Ellis & D.W Ellis [2025] NSWPICMP 615
APPELLANT:	James Robertson
RESPONDENT:	D.J ELLIS & D.W ELLIS
APPEAL PANEL
MEMBER:	Mitchell Strachan
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	18 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) fell into error in making deduction pursuant to section 323 for noise exposure outside of New South Wales after deemed date of injury; whether deduction was available to MA in any event; Schofield v Abigroup Limited, Mills v Conopus Corporation Australia Pty Ltd, and Miller v Tom Condon Stone Masonry considered and distinguished; Bain v Commissioner for Railways, A & G Engineering Pty Ltd v Civitarese, Russo v World Services and Construction, Rico Pty Ltd v Roads and Traffic Authority, Curran v Linfox Armaguard Pty Ltd, and Ventia Australia Pty Ltd v Mawson considered and applied; Held – no deduction for noise exposure outside of New South Wales after the deemed date of injury is available.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 June 2025, James Robertson, 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 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 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 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

The factual background with respect to the appellant’s employment history is uncontroversial but important in the context of the current appeal. It is set out by the appellant’s solicitor in the Notice of Claim and Notice of Injury dated 4 March 2024 as follows:
(a)    1982 to 2009 as a labourer/machine operator in noisy employment with various employments in New South Wales;
(b)    2010 to 2013 as a labourer/machine operator in noisy employment with Austinly Industrial Pty Limited t/as Super Jet 60 Drycleaners in New South Wales;
(c)    2013 to 8 January 2017 as a labourer/machine operator in noisy employment with DJ Ellis and DW Ellis t/as The Village Dry Cleaners (the respondent) in New South Wales;
(d)    2019 to 2020 as a labourer/machine operator in noisy employment with Thomson Family Trust t/as Morwell Dry Cleaners in Victoria;
(e)    the appellant was unemployed from 2020 to 2022, and
(f)    2022 – present as a labourer/machine operator in noisy employment with Park Avenue Laundry.
That is from 1982 to 2017 the appellant worked as a labourer/machine operator in a noisy industrial laundry environment in New South Wales. He ceased work in New South Wales in 2017 and the respondent was the last noisy employer in New South Wales.
Absent the period of unemployment between 2020 and 2022 he continued from 2019 to present to undertaken similar noisy work in Victoria.
On 4 March 2024 the appellant made a claim for lump sum compensation on the respondent for lump sum compensation with respect to industrial hearing loss.
The claim was with respect to 16% whole person impairment and relied upon reports of
Dr Paul Fagan dated 19 January 2024 and 1 March 2024.
On 18 March 2024 the respondent’s insurer issued a dispute notice in accordance with s 78 of the 1998 Act disputing the respondent was the appellant’s last noisy employer and that the appellant’s employment with the respondent was noisy in accordance with ss 15 and 17 of the Workers Compensation Act 1987 (the 1987 Act). They indicated they had arranged an assessment with Dr Howison and would review the position upon receipt of Dr Howison’s report.
On 25 November 2024, the respondent’s insurer issued a further notice which noted that liability for certain medical expenses had been accepted but that the claim for permanent impairment compensation was disputed on the basis the appellant’s degree of whole person impairment was not more than 10% as required by s 66 of the 1987 Act. That is, by this time the liability disputes with respect to noisy employment had been resolved and the respondent accepted it was the appropriate New South Wales employer for the claim to be made against.
The appellant ultimately referred the dispute to the Personal Injury Commission and was assessed by the Medical Assessor who assessed the appellant at 10% WPI.
An appeal from the assessment of the Medical Assessor is now before the Appeal Panel.

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient material before the Appeal Panel for the Appeal Panel to determine the appeal.

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.
In summary, the appellant submits that:
(a)    the Medical Assessor made a demonstrable error by making a deduction regarding the extent to which the loss was attributable to noise exposure after
8 January 2017;
(b)    there was no basis for making the deduction for the effects of the subsequent employment outside;
(c)    section 323 of the 1998 Act does not apply as it only applied where an injury, abnormality or condition predates the subject work injury and does not apply with respect to subsequent injuries;
(d)    the effect of s 17 (and previously s 16(1A) of the former Workers Compensation Act 1926) was explained in Bain v Commissioner for Railways (1963) 81 WN (Pt 1) (NSW) 322 where Walsh J in the Full Supreme Court said:
"In terms of section 16, it was this loss of hearing which was ‘the injury’ for which he was to be compensated on the footing that it was deemed to have happened at the date of the claim. Therefore it mattered not when some deafness had first manifested itself or what had in fact been the history of its progressive stages. In particular it mattered not if, as the Appellant contends, the evidence did not permit a finding that any significant part of it had in fact occurred after
1 December 1960";
(e)    section 17 of the 1987 Act was further considered by the Court of Appeal in A & G Engineering Pty Ltd v Civitarese (1996) 14 NSWCCR 158 and Russo v World Services and Construction [1979] 1 NSWLR 330. Section 17 does not require a distinction to be made between hearing loss which occurred before or after the deemed date of injury;
(f)    the appellant submitted that s 17 imposes an obligation on the respondent regardless of where the hearing loss occurred. There is no legislative basis to exclude the loss that occurred whilst working outside of New South Wales;
(g)    the appellant referred to the decision of an Appeal Panel in Curran v Linfox Armaguard Pty Ltd [2021] NSWPICMP 76 (Linfox), where a Medical Assessor had made a deduction for hearing loss due to the continuing noise exposure and the lengthy review of authorities and the conclusions reached by the Appeal Panel in that matter. The appellant submitted that paragraphs [38] - [92] of reflected a correct statement of the law with respect to deductions for possible hearing loss in subsequent employment where the subsequent employer is not a relevant employer for the purpose of the NSW Legislation;
(h)    the appellant also submitted that a time weighted assessment was not a proper basis for determining any deduction for subsequent noise exposure, and
(i)    the appellant submitted that the appellant’s binaural hearing loss, as assessed by the Medical Assessor is 24.5% equating to 12% WPI. The original MAC should be revoked and a new MAC issued reflecting this without deduction.
In reply, the respondent submits that:
(a)    the respondent appropriately accepts that the MAC contains a demonstrable error as s 323 of the 1998 Act does not provide a basis for the Medical Assessor to make a deduction in respect of subsequent noise exposure;
(b)    however, the Medical Assessor’s exclusion of the proportion of impairment resulting from subsequent noise exposure outside of New South Wales was consistent with the approach taken on judicial review by the Supreme Court in Schofield v Abigroup Limited [2016] NSWSC 954. The respondent submits that Schofield is binding on the Appeal Panel;
(c)    the respondent submits that the present case can be distinguished from the cases of Lennon, Civitarese and Russo which concerned liability of an employer outside of New South Wales to pay compensation under the 1987 Act. This was addressed by Justice Fullerton in Schofield at [30]-[31] where her Honour noted that in the earlier cases the courts were not asked to and did not determine whether an adjustment was applicable for impairment resulting from subsequent noisy employment in another State;
(d)    the respondent referred to Appeal Panel decisions in Mills v Conopus Corporation Australia Pty Ltd [2023] NSWPICMP 18 (Mills) and Miller v Tom Condon Stone Masonry [2023] NSWPICMP 578 (Miller) where the reasoning in Curran was rejected in favour of the reasoning in Schofield;
(e)    the respondent did not accept the appellant’s submission regarding time based apportionment, and
(f)    the respondent submitted the Appeal Panel should revoke the MAC of the Medical Assessor and substitute it with a MAC that correctly describes the reduction of 2% made by the Medical Assessor as an adjustment for impairment which resulted from the appellant’s employment outside of New South Wales after the deemed date of injury.

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.
The Medical Assessor following assessment of the appellant, assessed binaural hearing impairment at 24.5% equating to 12% whole person impairment.
The Medical Assessor then notes:
“However 6 of his 41 years of occupational noise exposure have been outside the NSW jurisdiction so, because all of the noise exposure seems to have been much the same I have made a pro rata deduction for this - I do not believe that a Section 323 (2) deduction is appropriate. Making these calculations indicates that a 1.76% WPI deduction is appropriate and rounding this to the closest whole number gives 2% WPI to be deducted. Making this deduction gives 10% WPI requiring compensation.”
Under the heading “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the Medical Assessor references a deduction of 12.5% BHI for non-related hearing loss. When the certificate is read as a whole, it is apparent that this is the appropriate deduction with respect to non-noise induced occupational hearing loss and does not form part of the impairment resulting from the injury.
Then, in the MAC at the bottom of the table setting out the assessment the Medical Assessor records:
“Resultant total BHI of 24.5% = 12% whole person impairment (Table 9.1) but after additional deduction under Section 323 (2) this becomes 10% whole person impairment.”
That is, the deduction with respect to subsequent hearing loss outside of New South Wales is described as a deduction in accordance with s 323(2) of the 1998 Act.
Section 323 of the 1998 Act provides as follows:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
Section 323 of the 1998 Act only operates with respect to a pre-existing condition or impairment, not with respect to further injury or impairment.
The Appeal Panel accepts the submission made by the appellant (and properly conceded by the respondent) that in applying the terms of s 323 of the 1998 Act to impairment that may had resulted from employment after employment with the respondent, rather than with respect a pre-existing condition or impairment the Medical Assessor fell into error.
Having found error, the Appeal Panel must now correct that error. Having regard to the parties’ submissions, this requires consideration as to whether any deduction is appropriate in any event.
The respondent submits the deduction on account of noise exposure outside of New South Wales after the appellant ceased work in New South Wales remains appropriate.
The appellant submits there is no basis for such a deduction.
Section 17 of the 1987 Act provides:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a)for the purposes of this Act, the injury shall be deemed to have happened—
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c)compensation is payable by—
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…”
As discussed by the Court of Appeal in Rico Pty Ltd v Roads and Traffic Authority (1992) 28 NSWLR 679, 869-690 (Rico) an injury for industrial deafness proceeds on the basis of a number of assumptions. Sheller JA said at [15]:
“The legislative scheme for awards of compensation for boilermaker’s deafness proceeds on the following assumptions or fictions:
1.The condition known as ‘boilermaker’s deafness’ is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s 17(2)).
2.A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s 17(1)).
3.In the language of Barwick CJ, in Commissioner for Railways v Bain the injury is taken to have happened ‘as it were, in one blow’. If the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s 17(1)(a)”
His Honour said:
“Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant. Clause 2 of Pt 6 limits the application of s 67 to injuries received after a particular time. The question for decision is whether cl 2 refers to the point of time at which the injuries were actually received or to the deemed or notional point of time prescribed by s 17.
To choose the actual point of time is to depart from the result of an historical development in workers compensation legislation in New South Wales designed, in the case of progressive slow growing industrial or occupational diseases or injuries, to relieve the worker from the daunting forensic task of proving when they occurred and, if they were employment related, by which relevant employer compensation therefor is payable. In the case of loss of hearing caused by a gradual process, s 17 achieves this design by providing that the loss is an injury which happened at a particular arbitrary point of time, making compensation payable upon demonstration that the worker was employed by an employer in an employment to the nature of which the injury was due and fixing a particular employer with liability…”
This is consistent with what was said in In A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41(Civitarese) by Beazley JA (with whom Handley and Sheller JJA agreed) adopting Sheller JA in Rico:
“Counsel for the appellant submitted that upon its true construction, s17(1(c)(ii) should be read as if there were inserted into its provisions the words which are bolded as follows:
compensation is payable by -
(ii) . . .the last employer by whom the worker was employed in an employment to the nature of which the injury was due but only if the last such employment was in New South Wales before he or she gave notice.’
Counsel acknowledged that the affect of this construction was that a worker, who had suffered a hearing loss in New South Wales, but whose last noisy employment was with an employer located outside New South Wales could not use the provisions of s 17 to claim compensation from the New South Wales employer. He submitted that the worker, in that case, would be required to prove, through the combined operation of ss4, 9 and 66, the extent of the loss caused by the employment in New South Wales and that the employer against whom the claim was made, actually caused the loss for which the claim was made.
Section 17, as the appellant's case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary, under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR (1992) 28 NSWLR 679 at 689-690, s 17 proceeds on a series of fictions or assumptions, upon which a worker's entitlement to recover an award under s 66 is based.
In the present case, the last noisy employment was in the Northern Territory. However, the Act does not have extra-territorial operation so as to make T & G Refrigeration liable as the last employer under s 17; see Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68. That being so, s 17 operates so as to make the appellant the last employer. In other words, the appellant is the last employer to whom the legislation applies and is thus liable to pay compensation. This construction of s 17 is confirmed by this Court's decision in Russo v World Services and Constructions Pty Ltd [1979} 1 NSWLR 330. In that case, the Commonwealth was the last noisy employer and the respondent the noisy employer before that. It was held that, as the Commonwealth was not bound by the provisions of the New South Wales legislation, the respondent was the last noisy employer for the purposes of s17 and thereby liable to pay compensation.
Given the fictional basis upon which s17 proceeds, the construction for which the appellant contends involves the implication of language for which there is not only no warrant, but which runs counter to the very purpose of the section. If follows that the appeal should be dismissed with costs.”

In OneSteel Ltd v Devine [2012] NSWWCCPD 52 at [48] (Devine) Roche DP in considering Rico said:
“There are many cases where the employer who made only a minimal contribution to the actual hearing loss suffered pays all or most of the compensation awarded. However, there will be many other situations where the same employer will pay no compensation for the hearing loss caused by its employment. That is the nature of a scheme based on assumptions and fictions. It is therefore incorrect to submit that the statutory scheme requires an employer to pay compensation only for those injuries or losses suffered by the worker in that employer’s employment.”
The respondent relies upon what was said on judicial review, in similar circumstances to the current appeal, by Fullerton J in Schofield v Abigroup Limited [2016] NSWSC 954 at [33]:
“I regard the construction of s 319(c) of the 1998 Act as it applies in the context of the operation of s 17 of the 1987 Act for which the first defendant contends as the correct construction. That is, that as the plaintiff’s last employer in New South Wales at the date of the Notice of Injury, the first defendant was liable under s 17(1)(c)(ii) for the injury to the plaintiff’s hearing that had occurred “in one blow” as at the deemed date of injury by a gradual process predating that date. Accordingly, in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.” [emphasis in original].
Section 319(c) of the 1998 Act is a definitional section which defines medical dispute to mean “a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim … (c) the degree of permanent impairment of the worker as a result of an injury.”
The difficulty in accepting the respondent’s submission with respect to Schofield is that the decision in Schofield has failed to properly identify, applying relevant authority from the Court of Appeal, as to what “that injury” was, being the injury referred to in s 319(c).
Consistent with what Sheller JA said in Rico, the injury that the Medical Assessor was required to assess as part of the medical dispute under s 319(c) was an injury arising from the assumptions and fictions created by s 17 of the 1987 Act. That injury, with its deemed date, was taken to include all industrial hearing loss as though it was sustained “in one blow”.
While the appellant’s injury is deemed by operation of s 17(1)(a)(ii) to have occurred on
8 January 2017, the actual date of injury is a fiction created by legislation and the time the injury happened is irrelevant.
The injury is, in itself, the industrial hearing loss suffered by the appellant. As explained by Sheller JA in Rico, there are clear policy objectives underpinning s 17(1)(b), which creates as a legal fiction, liability in a particular employer, whether or not they are actually responsible for the injured worker’s industrial hearing loss.
As a result of the legal fiction created by s 17(1) of the 1987 Act “the injury” to be assessed is the appellant’s industrial hearing loss, regardless of when it occurred.
This is the position that was taken by differently constituted appeal panels in Linfox and Ventia Australia Pty Ltd v Mawson [2024] NSWPICMP 42. Although again differently constituted appeal panels in Mills v Canopus Corporation Australia Pty Ltd [2023] NSWPICMP 18 and Miller have followed the position in Schofield.
The Appeal Panel accepts the respondent’s submission that a decision of the Supreme Court would ordinarily be binding on the Appeal Panel. Decisions of other appeal panels are not. However, the Appeal Panel considers that Schofield fails to consider significant authority developed in appellate jurisdictions over a long period of time, including to Rico which was not considered in Schofield, and for these reasons declines to follow it.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2025 should be revoked, and a new MAC should be issued. No issue was taken on appeal with the assessment of binaural hearing impairment recorded by the Medical Assessor but for the deduction made and discussed at length above. As such, the findings of the Medical Assessor on examination and audiogram forms the basis for the assessment by the Appeal Panel, but correcting for the error made by the Medical Assessor in making a deduction for subsequent noise exposure outside of New South Wales.
The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	M1-W1698/25
Applicant:	James Robertson
Respondent:	D.J ELLIS & D.W ELLIS

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Henley Harrison and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Notional date of injury	Frequency Hz	Left dB HL Air Bone	Right dB HL Air Bone	Total % BHI	Occupational % BHI
8 January 2017 (deemed)	500	35 4.5	35 4.5	4.5	0
1000	40 8.0	40 8.0	8.0	0
1500	40 6.4	40 6.4	6.4	6.4
2000	50 7.3	40 4.8	5.3	5.3
3000	65 7.0	40 3.2	3.8	3.8
4000	70 7.5	60 6.0	6.1	6.1
40.7	32.9	22.6
TOTAL % BHI: 34.1
Less Pre-existing non-related loss: 12.5%
Less Presbyacusis correction: 0.1
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 24.5
Resultant total BHI of 24.5% = 12% whole person impairment (table 9.1).

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2025] NSWPICMP 615

18 August 2025