Wilson v Shoalbus Pty Ltd - [2024] NSWPICMP 462

DETERMINATION OF APPEAL PANEL
CITATION:	Wilson v Shoalbus Pty Ltd [2024] NSWPICMP 462
APPELLANT:	David Wilson
RESPONDENT:	Shoalbus Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	17 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of whole person impairment in respect of noise induced hearing loss; long work history in varied employment and not all in noisy employment; Shone v Country Energy distinguished; Held – Medical Assessor gave detailed reasons for relying only on findings at 3000 Hz and 4000 Hz; when the hearing loss was not progressive; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 March 2024 David Wilson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Henley Harrison, who issued a Medical Assessment Certificate (MAC) on 4 March 2024.
Mr Wilson relies on the following grounds of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, the ground of appeal was made out. 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 Wilson was employed by Shoalbus Pty Ltd (Shoalbus) as a bus driver. He claimed permanent impairment compensation for 13% whole person impairment (WPI) as a result of hearing loss, with a deemed date of injury of 1 December 2020. Shoalbus did not dispute that it was Mr Wilson’s last noisy employer nor that he suffered noise induced hearing loss, though did dispute that he suffered more than 10% WPI.
The Medical Assessor assessed 5% WPI, after making a deduction for presbycusis and allowing 1% for severe tinnitus. The Medical Assessor determined that only the loss at 3000 and 4000 Hz was consistent with occupational hearing loss.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Mr Wilson to undergo a further medical examination…

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 462
Decision Date: 17 July 2024

CaseChat Overview and Summary

Wilson brought an appeal against a decision regarding the assessment of his whole person impairment due to noise-induced hearing loss. The dispute was heard in the New South Wales Supreme Court. Wilson contended that the assessment should have considered his entire employment history, including periods not in noisy work, and that the decision-maker's reliance on specific frequency findings was incorrect. The central legal issues were whether the assessment correctly considered the impact of Wilson's entire work history and whether the decision to focus on certain frequencies was justified.

The court examined the relevant legislation and case law, particularly Shone v Country Energy, to determine the proper approach to assessing whole person impairment. The court found that the Medical Assessor provided detailed reasons for focusing on the 3000 Hz and 4000 Hz frequencies, as these were critical to diagnosing noise-induced hearing loss. Given that Wilson's hearing loss was not progressive, the court held that the Medical Assessor's approach was appropriate. The court also noted that the Medical Assessment Certificate supported the decision, affirming that the assessment was correctly made.

Consequently, the appeal was dismissed. The court upheld the assessment of Wilson's whole person impairment based on the findings at the specified frequencies. The detailed reasoning provided by the Medical Assessor was deemed sufficient to justify the decision, and the court found no basis to overturn the assessment.

Orders