Stanjovic v Falcones Pty Limited - [2022] NSWPICMP 105

DETERMINATION OF APPEAL PANEL
CITATION:	Stanjovic v Falcones Pty Limited [2022] NSWPICMP 105
APPELLANT:	Rajna Stanjovic
RESPONDENT:	Falcones Pty Limited
APPEAL PANEL:	Member Paul Sweeney Dr Robert Payten Dr Joseph Scoppa
DATE OF DECISION:	6 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Worker appeals from Medical Assessment Certificate (MAC) certifying whole person impairment for industrial deafness alleging error in calculations; an incorrect history in respect of hearing protection; and demonstrable error by the Medical Assessor (MA) in failing to take into account deafness in the low tones below 1500Hz in assessing the degree of industrial deafness; Held- Panel accepts that the MA made an error in calculation and took an incorrect history; on reassessment Panel determines that features of the audiograms were not consistent with noise induced hearing loss; new MAC issued excluding the losses below 1500Hz.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2021, Rajna Stanjovic (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 (MA), who issued a Medical Assessment Certificate (MAC) on 9 December 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Between 1980 and 2018, the appellant was employed in work that exposed her to noise. She developed noise induced hearing loss. It is common ground that she was exposed to noise which had the potential to damage her hearing throughout her employment.
In 2010, the appellant received compensation for 10.4% binaural hearing loss. Her last noisy employer at that time was Bonds Industries Limited. Between 2011 and 2018, she was employed by Falcones Pty Ltd (the respondent). She has not worked since 2018.
By her statement the appellant says that during her employment with the respondent she was exposed to noise from heavy machinery, industrial mixers, rollers and conveyors, slicers, packers, industrial fans, alarms and signals and other surrounding noise…

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: [2022] NSWPICMP 105
Decision Date: 6 May 2022

CaseChat Overview and Summary

The dispute in Stanjovic v Falcones Pty Limited concerns a worker's challenge to a Medical Assessment Certificate (MAC) that certified their whole person impairment due to industrial deafness. The worker alleges that there was an error in the calculations, an incorrect history regarding hearing protection, and a failure by the Medical Assessor to consider deafness in the low tones below 1500Hz. The case was heard in the Court of Appeal, where the panel reviewed the MAC and the arguments presented by the worker. The legal issues at hand were whether the Medical Assessor's calculation of the whole person impairment was accurate, whether the history provided by the worker regarding hearing protection was correctly taken into account, and if the low-tone deafness below 1500Hz was appropriately considered in the assessment.

The panel found that the Medical Assessor had indeed made an error in the calculation and had taken an incorrect history regarding hearing protection. Additionally, the panel identified that the features of the audiograms were not consistent with noise-induced hearing loss. The worker's argument that the deafness in the low tones below 1500Hz was not considered was accepted, leading the panel to reassess the degree of industrial deafness. After reassessment, the panel determined that the worker's hearing loss was not consistent with the criteria for noise-induced hearing loss, particularly concerning the low-tone deafness. Consequently, a new MAC was issued, excluding the losses below 1500Hz.

The court's decision highlights the importance of accurate medical assessments in workers' compensation claims. By reassessing the audiograms and excluding the low-tone deafness, the panel provided a more precise and fair assessment of the worker's whole person impairment. This reassessment led to a new MAC, reflecting a more accurate representation of the worker's condition and the resulting impairment.

Orders