Ventia Australia Pty Ltd v Mawson - [2024] NSWPICMP 42

DETERMINATION OF APPEAL PANEL
CITATION:	Ventia Australia Pty Ltd v Mawson [2024] NSWPICMP 42
APPELLANT:	Ventia Australia Pty Ltd
RESPONDENT:	Greg Mawson
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Henley Harrison
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	30 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; noise-induced hearing loss; agreed deemed date of injury before last date of noisy employment; deduction sought for loss in subsequent employment; Schofield v Abigroup Limited distinguished; Rico v Roads and Traffic Authority and OneSteel Limited v Devine discussed; section 323 deduction for noisy employment overseas; Pereira v Siemens Limited discussed; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 September 2023 Ventia Australia Pty Ltd (Ventia) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 August 2023.
Ventia 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds 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 Mawson claims compensation from Ventia for noise induced hearing loss. Ventia does not dispute that his employment with it was noisy.
Mr Mawson commenced his working life as an apprentice fitter/machinist with Caltex, working for that company between 1971 and 1974. In 1975 and 1976 he was employed by Thames Gas Co in the United Kingdom. In 1976 he recommenced working for Caltex and remained there until 1997. He worked for undisclosed periods for Caltex in Malaysia in 1983 and the Philippines in 1995. He was employed as a hotel manager in 1997 and 1998.
He was employed by Ventia (then called Transfield Services) to work in South Australia between 1998 and 1999. He then worked for BVI Engineering in NSW as a manager.
Mr Mawson worked for Ventia between 2003 and 2015. During that period…

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: [2024] NSWPICMP 42
Decision Date: 30 January 2024

CaseChat Overview and Summary

In the case of Ventia Australia Pty Ltd v Mawson, the Federal Circuit and Family Court of Australia was tasked with determining an issue related to workers' compensation concerning noise-induced hearing loss. The dispute involved the claimant, Mawson, who was seeking compensation from his employer, Ventia Australia Pty Ltd, for a hearing impairment. The primary question before the court was whether the employer could seek a deduction in the compensation payable under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 due to the claimant's subsequent employment in a noisy environment overseas.

The court considered the applicability of previous cases such as Schofield v Abigroup Limited, Rico v Roads and Traffic Authority, and OneSteel Limited v Devine, which dealt with similar issues of noise-induced hearing loss and the implications of subsequent employment in noisy environments. The court also examined the case of Pereira v Siemens Limited, which provided guidance on the revocation of a Medical Assessment Certificate (MAC) in circumstances where the MAC had been issued in error.

In its reasoning, the court held that the employer was not entitled to seek a deduction for the claimant's overseas employment, as the injury in question was already deemed to have occurred before the claimant's last date of noisy employment in Australia. The court further determined that the MAC issued to the claimant should be revoked, as it was based on incorrect information regarding the date of the injury. Consequently, the court ruled in favour of Mawson, rejecting the employer's application for a deduction in compensation and ordering the revocation of the MAC.

Orders