White v PDA Holdings Pty Ltd - [2022] NSWPICMP 453

DETERMINATION OF APPEAL PANEL
CITATION:	White v PDA Holdings Pty Ltd [2022] NSWPICMP 453
APPELLANT:	Geoffrey Edward White
RESPONDENT:	PDA Holdings Pty Ltd
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Brian Williams
DATE OF DECISION:	11 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Noise-induced hearing loss; Medical Assessor (MA) excluded loss at 500 Hz and made a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of a period of self-employment; long working life but not exposed to noise all day; MA gave reasons and no error in not including loss at 500Hz; operation of section 17 of the Workers Compensation Act 1987; Commissioner for Railways v Bain, Blayney Shire Council v Lobley, Rico v Roads and Traffic Authority, A & G Engineering v Civitarese applied; MA in error to rely on section 323 of the 1998 Act in respect of period of self-employment; Pereira v Siemens Limited distinguished; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 July 2022 Geoffrey Edward White lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sylvester Fernandes, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 July 2022.
Mr White relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 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 White was employed by PDA Holdings Pty Ltd (PDA) as the manager of the liquor store at Shoal Bay Country Club. He ceased that employment in December 2017. PDA did not dispute that it was Mr White’s last noisy employer for the purpose of s 17 of the Workers Compensation Act 1987 (the 1987 Act).
Mr White had been employed as a liquor store manager by various employers since 2005. Between 1980 and 2005 he was self-employed as the owner of a grocery and liquor store. Mr White said in his statement that for 10 years before that he was employed by Edgells which was noisy. He also worked as a bank teller for four…

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.

Continue reading White v PDA Holdings Pty Ltd

Details

AGLC: White v PDA Holdings Pty Ltd [2022] NSWPICMP 453
Case: [2022] NSWPICMP 453
Decision Date: 11 November 2022

CaseChat Overview and Summary

In the matter of White v PDA Holdings Pty Ltd, the dispute centred on a claim for workers' compensation concerning noise-induced hearing loss. The case was heard by the Workers Compensation Commission of Victoria. The key issues that required the court's determination were whether the Medical Assessor (MA) correctly excluded the hearing loss at 500 Hz, the application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), and the proper interpretation of section 17 of the Workers Compensation Act 1987.

The court meticulously examined the MA's decision, which excluded the hearing loss at 500 Hz, and found that there was no error in this exclusion. The reasons provided by the MA were considered sound, and the court was satisfied with the conclusion reached. The court also reviewed the application of section 323 of the 1998 Act, which was used to make a deduction in respect of a period of self-employment. The court held that the MA erred in applying this section to the period of self-employment, as it was not applicable in this context. The decision in Pereira v Siemens Limited was distinguished, as it did not align with the facts of this case. The principles from previous cases such as Commissioner for Railways v Bain, Blayney Shire Council v Lobley, Rico v Roads and Traffic Authority, and A & G Engineering v Civitarese were applied to reach the conclusion that the MA's certificate should be revoked.

As a result of the court's findings, the Medical Assessment Certificate was revoked. This decision underscored the importance of correctly applying statutory provisions and the need for precise adherence to legislative frameworks in workers' compensation claims.

Orders