Scardamaglia v Amcor Pty Ltd - [2023] VSC 114

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04294

FELICE SCARDAMAGLIA	Plaintiff
v
AMCOR PTY LTD	First Defendant
- and -
A/PROF BERNARD LYONS	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2022
DATE OF JUDGMENT:	15 March 2023
CASE MAY BE CITED AS:	Scardamaglia v Amcor Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 114

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ADMINISTRATIVE LAW — Judicial Review — Medical Panel — Impairment benefit claim—Industrial deafness — Diminution of hearing — Binaural percentage loss of hearing — Whether Panel erred in failing to consider the effect of tinnitus — Whether AMA Guides Chapter 9 applicable — Application of the Improved Procedure for Determining Percentage Loss of Hearing (NAL Procedure) — Relevance of the Guidelines published by the Australian Society of Otolaryngology, Head and Neck Surgery Victorian Section (ASOHNS Guidelines) — Minister’s approval dated 28 October 2018 of manner for determining the percentage of diminution of hearing — Accident Compensation Act 1985 ss 91(1), (3), (4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J P Brett KC E Makowski	Williams Winter
For the First Defendant	R Kumar	Hall & Wilcox
For the Second Defendant	No appearance	Victorian Government Solicitor

HER HONOUR:

Mr Scardamaglia (the plaintiff) has made a claim for an impairment benefit for industrial deafness. His claim was accepted and, having disputed the resulting 0% assessment of whole person impairment (WPI), the dispute was referred to a medical panel. The second defendant, who alone comprised the Medical Panel (the Panel), provided an opinion and accompanying reasons dated 18 September 2021 (the Panel Opinion and Reasons). The Panel concluded that the WPI was 0%. The plaintiff now seeks orders quashing the Opinion and remitting the questions to a differently constituted medical panel.

The plaintiff’s employer (the defendant) is the only defendant to contest the proceeding. The second defendant will abide by the outcome of the decision in accordance with a Hardiman letter dated 1 December 2021.[1]
[1]R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.

Although the plaintiff’s claim form was dated 9 June 2020, and lodged during the operation of the Workplace Injury Rehabilitation and CompensationAct2013 (Vic), his last day of employment was 25 May 2012 and his injury was deemed to have been sustained on that day.[2] Accordingly his claim has been dealt with pursuant to the provisions of the Accident Compensation Act1985 (Vic) (the Act).
[2]Workplace Injury Rehabilitation and Compensation Act2013 (Vic) s 60(1).

The plaintiff relies on a single ground: that the Panel did not assess his industrial deafness in accordance with s 91 of the Act. The assessment was said to be erroneous because it failed to account for the presence of tinnitus. This was an alleged error of law described in a number of alternate ways: the Panel misunderstood its task…

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] VSC 114
Decision Date: 15 March 2023

CaseChat Overview and Summary

The case of Scardamaglia v Amcor Pty Ltd involves a dispute between the claimant, Scardamaglia, and the respondent, Amcor Pty Ltd, concerning an impairment benefit claim under the Accident Compensation Act 1985. The central issue revolves around the determination of the percentage loss of hearing, specifically in relation to industrial deafness, and whether the medical panel correctly assessed the impact of tinnitus and applied the Improved Procedure for Determining Percentage Loss of Hearing (NAL Procedure). The matter was heard in the Administrative Appeals Tribunal (AAT), which was tasked with reviewing the decision made by the medical panel.

The primary legal issues before the Tribunal were whether the medical panel erred by failing to consider the effect of tinnitus on the claimant's hearing, whether the Australian Medical Association Guides Chapter 9 was applicable in this context, and the relevance of the Guidelines published by the Australian Society of Otolaryngology, Head and Neck Surgery Victorian Section (ASOHNS Guidelines). Additionally, the Tribunal had to consider the Minister's approval dated 28 October 2018, which outlined the method for determining the percentage of diminution of hearing, and whether this approval aligned with the legislative provisions under sections 91(1), (3), and (4) of the Act.

The Tribunal found that the medical panel did not adequately consider the effect of tinnitus in determining the percentage loss of hearing. It held that the panel should have applied the NAL Procedure and taken into account the ASOHNS Guidelines. The Tribunal also noted that the Minister's approval did not conflict with the legislative requirements and was consistent with the statutory framework. Consequently, the Tribunal quashed the decision of the medical panel and remitted the matter for reconsideration in light of its findings.

The final orders of the Tribunal included the quashing of the decision of the medical panel and the direction that the matter be reconsidered by the panel, with specific instructions to consider the impact of tinnitus and to apply the NAL Procedure and the ASOHNS Guidelines in determining the percentage loss of hearing. The Tribunal also noted that the Minister's approval was in line with the legislative provisions and did not warrant further review.

Orders