Dening v Oltoy Pty Ltd trading as Noble Toyota

Supreme Court of NSW|2014-08-19

Judgment 1HER HONOUR: This is an application for judicial review. The plaintiff seeks that the decision of the second defendant dated 17 October 2013 (should be 20 February 2014) and the decision of the third defendant dated 4 April 2014 be quashed or set aside and that the proceedings be remitted back to the third defendant to determine the matter according to law. 2The plaintiff is Frank Dening (Mr Dening). The first defendant is Oltoy Pty Ltd (trading as Noble Toyota) (Noble Toyota) who was the employer of Mr Dening. The second defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales, which consisted of John Wynyard, Dr Joseph Scoppa and Dr Sylvester Fernandes (the Appeal Panel). The third defendant is the Registrar of the NSW Workers Compensation Commission of New South Wales (the Registrar). The second and third defendants have filed submitting appearances.

Background 3From 20 June 2003 until 1 June 2006 Noble Toyota employed Mr Dening as a car salesman. The car dealership was located on the corner of two busy streets. It was alleged that Mr Dening had been regularly exposed throughout the course of his employment to the noise of the two streets as well as to machinery noise created by the workshop located within the premises of the dealership. 4On 7 November 2011 Mr Dening was examined by Professor Paul Fagan. Professor Fagan stated that Mr Dening was suffering from "industrial deafness" and that the last "noisy" employer of Mr Dening was Noble Toyota. Dr Fagan assessed Mr Dening's hearing loss to be at 42.6%, which resulted in an impairment assessment of 22% [Dr Fagan's Report 21/2/2012]. 5Based on Professor Fagan's findings on 1 March 2012 Mr Dening's solicitors sent a Notice of Claim to Noble Toyota. A letter in reply dated 5 April 2012 from Noble Toyota denied liability, citing that the employment "was not of the sufficient nature to cause industrial deafness", that the employment "did not substantially contribute to the claimed injury" and that "the industrial deafness is not a workplace injury" within the meaning of s 4 of the Workers Compensation Act 1987 (NSW). 6On 22 June 2012 Mr Dening filed with the Workers Compensation Commission an application to resolve a dispute, claiming a lump sum payment of $32,500 for industrial deafness and $25,000 for pain and suffering. 7On 5 June 2013 by email, Noble Toyota notified the Registrar that the dispute had been resolved conceding that Noble Toyota was the "last noisy employer" of Mr Dening ("the concession email"). The concession email then went on to say that there were two issues that still had to be resolved, namely (1) the nature and extent of loss of hearing suffered by Mr Dening and (2) if hearing aids were a reasonable and necessary treatment. Noting these issues, Noble Toyota sought that the scheduled arbitration be vacated and that the matter be referred to an Approved Medical Specialist ("AMS"). 8On 12 June 2013 Mr Dening consented to the matter being referred to an AMS. I shall refer to the decision of the AMS later in this judgment. The AMS ultimately decided, despite Noble Toyota's concession, that the injury suffered was not related to Mr Dening's employment with Noble Toyota, as it was not "noisy employment". 9Mr Dening appealed the decision of the AMS to the Medical Appeal Panel ("Appeal Panel"). The Appeal Panel agreed with the decision of the AMS that the employment had not been noisy enough to cause Mr Dening's hearing loss setting out their reasons in a Statement of Reasons dated 20 February 2014. This decision will also be referred to shortly. 10On 4 April 2014 a Certificate of Determination was issued. It reads: "The Commission determines: 1. The applicant suffers 0% permanent impairment resulting from injury deemed to have happened on 1 June 2006. 2. The applicant has no entitlement to lump sum compensation resulting from injury deemed to have happened on 1 June 2006. ..." 11In order to determine the matters that are in dispute, it is necessary to briefly refer to the relevant statutory framework.

The relevant statutory framework 12The Workers Compensation Commission is established under s 366 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Act"). Section 105 of the Workplace Act gives the Commission its jurisdiction to deal with matters arising under the Workplace Act as well as the Workers Compensation Act 1987 (NSW) ("the Compensation Act"). 13Section 66 of the Compensation Act allows for the entitlement to compensation where there has been an injury resulting in permanent impairment. That section reads as follows: "66 Entitlement to compensation for permanent impairment (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act." 14Section 65(1) of the Compensation Act sets out that the degree of permanent impairment is to be assessed as is laid out under Chapter 7, Part 7 of the Workplace Act. Section 65(3) reads: "If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist." 15The focus of this judicial review is upon s 17, which refers to the payment of workers compensation for hearing loss. Section 17(1)(a)(ii) provides that an injury will be deemed to have occurred on the last day of employment, when the worker gives notice of the injury after their employment has ceased with the employer. 16Section 17(1)(c) entitles a worker who has suffered a hearing injury to compensation. Section 17(1)(c)(ii) reads as follows: (c) compensation is payable by: ... (ii) where the worker was not so employed-the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice. 17Subsection 17(1)(c)(ii) has the effect of deeming that even if a worker engages in noisy employment prior to their last noisy employer, it will be the final noisy employer who will be liable to pay compensation. 18It is important to appreciate that email dated 5 June 2013 ("the email"). Noble Toyota solicitors conceded to the plaintiff's solicitors that Noble Toyota was the "last noisy employer". 19Section 4 of the Compensation Act defines 'injury' as follows: "injury: (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and ..." 20The definition of injury is largely similar to that contained in s 4 of the Workplace Act. 21As mentioned earlier, Chapter 7, Part 7 of the Workplace Act deals with medical assessments. Under Part 7, s 319 sets out that an 'Approved Medical Specialist' (AMS) "means a medical practitioner appointed under this Part as an approved medical specialist." Section 319 also defines 'medical dispute' and sets out seven matters that may be resolved in a medical dispute: "medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable." 22The matters in dispute that were referred to the AMS were only those in subsections (a) and (e) not subsections (c) or (d). Subsections (c) and (d) both deal with permanent impairment. 23Section 321 allows the Registrar to refer matters in dispute to an AMS. Section 322 deals with assessment of permanent impairment, which is to be done in accordance with the WorkCover Guidelines. 24Section 323 allows the AMS to make a deduction for previous injury, pre-existing condition or abnormality when assessing the degree of permanent impairment. It reads: "323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. ... (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section." 25Section 326, like s 319, lists 'matters' to be dealt with by an AMS. Section 326 reads: "(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings." [Emphasis added]. 26It is convenient if now I briefly refer to the decisions of the AMS and Appeal Panel.

The reasons and decision of the Approved Medical Specialist 27On 25 June 2013 the Registrar issued a referral for assessment of permanent impairment and medical dispute to an AMS. The referral set out the two grounds for assessment, consistent with Noble Toyota's concession email, in the following terms: (1) The nature and extent of hearing loss suffered by a worker per s 319(e) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). (2) Whether hearing aids are reasonably necessary per section 319(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 28It is important to observe that the concession email was not before the AMS. Nor did the Registrar inform the AMS of the concession in the referral. Hence, the AMS was unaware Noble Toyota had conceded that it was the last noisy employer. 29The matter was referred to Dr Paul Niall (the AMS), an approved medical specialist, who examined Mr Dening on 16 August 2013. On 3 September 2013 the AMS issued a Medical Assessment Certificate and gave reasons. The AMS accurately recorded that: "1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT The following matters have been referred for assessment (s 319 of the 1998 Act): The nature and extent of loss of hearing. Whether hearing aid provision is reasonably necessary." 30The AMS commenced by detailing the history related to the industry (page 2) and then outlined the employment history of Mr Dening as follows (page 3): "- Salesman for about 3 years at Noble Toyota exposed to noise from traffic noise near an intersection outside in the sales yard usually for six to seven hours of an eight hour day. Otherwise he was usually in an office with customers. He would sometimes go in the workshop from a few minutes up to about half an hour to discuss matters to do with sales with a workshop staff member. There was noise from workshop operations including car engines and metal on metal noises. He worked six days per week. - Car Salesman for 4 years from 2000 at Jubilee Ford. This was mostly an office job. He was intermittently outside. He regarded this as a quiet job. - Previously he worked as a bloodstock agent for 18 years, and dairy farming intermittently for about 20 years. He regarded these jobs as not being noisy." 31The details of the AMS's findings on physical examination and details of his investigation are (page 3): "Tympanic membranes were intact on the right and partly obscured by loose wax on the left but appearing normal. Rinne tests were positive at 512 Hz and the Weber was not lateralised. No indicia of possible ear disease were seen in the external ear, face or neck. 6. DETAILS AND DATES OF SPECIAL INVESTIGATIONS AUDIOLOGICAL MEDICAL EXAMINATION Pure tone audiometry revealed a moderate to severe bilateral sensorineural hearing loss of a generally down-sloping configuration. Pure tone audiometry, tuning fork tests, voice tests of hearing and general conversational fluency were mutually consistent. The above clinical and audiological investigations were carried out on the date of examination given in Worker's details above." 32After making these findings a summary was given of the injury (page 3): "The claimant has a loss of uncertain aetiology not due to noise exposure. 33The reasons continued (pp 5 and 6): "Mr Dening was exposed to traffic noise at a busy intersection at Noble Toyota for up to about seven hours daily six days per week and had limited visits to a workshop as described above. In other employments he gave a history of no significant occupational noise exposures. Noise levels beside a busy road average approximately 75dBA. There are fluctuations in level but it is to be noted that it is the averaged exposure (in LA Eq 8hr) which is the potential risk factor for cochlear damage. The worker was exposed in this way for an uncertain period of about three to four years. This is one tenth of the intensity required to generate levels of 85dBA. Persons exposed to 85dBA are at risk of a small degree of hearing loss if exposed to 85dBA for 8 hours daily (or equivalent 8 hour levels) after a working life time. Workshop exposures were limited in time and in general did not stop speech communication - the purpose for which the worker would be there. By duration and intensity they could not have had any significant impact in altering the average daily exposure (in LA Eq 8hr). Considering all the work history the worker has not been exposed to noise at sufficient immission levels (the summed product of exposure level and duration) to have suffered an impairment due to the injury of deemed date 1-6-2006. The audiometric thresholds are of a configuration not seen occupationally except in the most extreme hazardous exposures - including extremes of both duration and intensity. Dr Fagan said the worker has had a long history of exposure to industrial noise. This is at variance with the history given. Doctor was of the opinion that the "frequencies 500-4000 Hz were effected" (sic). This is because of the duration and intensity of exposure. This is not supported - on the basis of either the duration or intensity of the exposure. A significant contribution from both would be required in order to be consistent with an aetiological occupational contribution but there is none such. The tinnitus is associated with the non-occupational hearing impairment and is not due to a work related injury. Accordingly, Dr Fagan's assessment of tinnitus is not supported."[My emphasis added.] 34It follows that the AMS determined that hearing aids would not be reasonably necessary due to the nature of Mr Dening's hearing loss [para 11]. 35In response to the question whether any deduction for the proportion of the impairment should be made due to a previous injury or pre-existing condition, the AMS answered: "12. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY The deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality is as set out in the relevant column of the Table below." 36The Medical Assessment Certificate (MAC) contained a table setting out that Mr Dening had a pre-existing non-related loss of 45%, which was 2.4% higher than Professor Fagan's initial assessment but which clearly stated that the loss was "non-related" (page 7). 37Mr Dening appealed the decision of the AMS upon two grounds pursuant to subsections 327(3)(c) and (d) of the Workplace Act. They are: (c) The assessment was made on the basis of incorrect criteria (d) The medical assessment certificate contains a demonstrable error." 38Subsection 327(4) provides that an appeal application must be made to the Registrar and an appeal cannot go ahead unless the Registrar is satisfied, on the prima facie basis of the application and attached submissions that at least one ground of appeal has been made out. 39Mr Dening appealed under grounds (c) and (d) set out in s 327(3). 40On 6 November 2013, the Registrar as gatekeeper, determined that he was satisfied that the ground of appeal specified in s 327(3)(d) was made out, that is that the medical certificate contains a demonstrable error. The Registrar referred the appeal to the Medical Appeal Panel.

The appeal 41Section 328 sets out the procedure for appeal. It relevantly reads: "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The WorkCover Guidelines can provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. ... (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel." 42In Siddick v Workcover Authority of NSW [2008] NSWCA 116, McColl JA said (Mason P agreeing) in respect of review under s 328 of the Act: "101 In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. This is not a backdoor resurrection of the appellant's abandoned third ground of appeal, simply a recognition of the proposition that determinations, which affect the "rights, interests and legitimate expectations" of the parties, attract requirements of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J. This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [14]-[18]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. ... 104 In my view, therefore, while it was open to the Appeal Panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard." 43Section 328 has been amended since the decision in Siddick. Currently, s 328(2) limits the review to the grounds on which the appeal is made. 44The Medical Appeal Panel was comprised of arbitrator Mr Wynyard and two otolaryngologists, Dr Scoppa and Dr Fernandes (the Appeal Panel). I shall briefly refer to the submissions made by the parties to the Appeal Panel.

Submissions to the Appeal Panel 45Mr Dening agreed with the AMS assessment that he had 45% binaural sensorineural hearing loss. 46Mr Dening sought to introduce as evidence Noble Toyota's concession email, which stated that the dispute no longer existed and that Noble Toyota was the "last noisy employer". Mr Dening's solicitors also sought to rely on an additional statement by Mr Dening dated 20 September 2013, which outlined his work history in more detail. Mr Dening's statement sets out his past noisy employment. It relevantly reads: "2. When I left school in 1962, I started an apprenticeship as a boilermaker/welder for Lifelong Products Pty Ltd of Gosford. I completed 2 years of my apprenticeship. During this time, I was exposed to noise of hammers, grinders, electric saws and general workshop noise. The noise was very loud at times, for up to 10 hours per day. 3. From 1964 until 1968, I worked as a full time farmer for my farther and other farmers my family knew. During this time, I was exposed to loud noise of tractors, trucks, rotary hoes, chainsaws, pumps for irrigation, diesel motors and other general farming machinery. This was very noisy employment with no hearing protection provided. It was not uncommon to work for up to 12 hours a day. ... 5. I worked for Peters Ice Creams as a machine operator and maintenance fitter from 1960 to 1971. This company manufactured dried milk products and chocolates. This was a noisy job as I was exposed to noise of turbines and pressure hoses. ... 7. Lastly, I also served for 3 years in the Rural Fire Services as a volunteer fire fighter. We often used chainsaws either during fires to create fire breaks or during training exercises. I was exposed to loud sirens and fire truck engines. 8. I continued in noisy employment with various employers, including Noble Toyota until I retired in 2006." 47Mr Dening submitted to the Appeal Panel that despite the concession made by Noble Toyota, the AMS had gone beyond his task of assessing the nature and extent of loss of hearing suffered by Mr Dening and had instead examined the issue of liability, that being the extent of any permanent impairment and whether it was connected to Mr Dening's employment with Noble Toyota. Further, he submitted that the AMS's error of assessing liability, rather than just the extent of Mr Dening's hearing loss, affected his assessment of the need for hearing aids and tinnitus loading. 48In response, Noble Toyota's submissions challenged the attempt to admit Mr Dening's statement as evidence, arguing that it was fresh evidence, it was inconsistent with Dr Fagan's medical history, and that the evidence could have been attained prior to the AMS assessment. It was also argued that the evidence would cause significant prejudice and injustice to Noble Toyota and went against the system and procedure of the Commission itself. This submission was unsuccessful. 49Noble Toyota also submitted that it was open to the AMS to make a deduction for a pre-existing injury despite that not being one of the referred issues to be assessed. In support of this proposition Noble Toyota cited Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 and the Medical Appeal Panel decision of Brandt v St George Motor Boat Club Ltd [2004] WCC No 161633-2004.

The decision of the Appeal Panel 50So far as Mr Dening's additional statement is concerned, the Appeal Panel took it into consideration. While the Appeal Panel was of the view that it was being tendered in an effort to alter the history of Mr Dening's employment as compared to what was available to the AMS and that it had no prima facie probative value, citing Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 at [78], it determined that it would be unreasonable to not admit the statement since it constitutes the sub stratum of the appeal. 51However, the Appeal Panel decided to not take into account the concession email. The Appeal Panel (at [10]) made this decision on the basis that: "The appellant sought to admit into evidence an email from the respondent's solicitors to the appellant's solicitors confirming that the respondent conceded that it was the last noisy employer. Such evidence in our view is not necessary in view of the terms of the referral by the delegate of the Registrar that named the respondent as causing the injury in respect of which the assessment was sought." 52The Appeal Panel then outlined its power to deal with an appeal, and noted: "24 Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding." 53The Appeal Panel continued: "25 The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the respondent." 54The Appeal Panel recorded the history taken by the AMS, outlined the AMS's reasons for his decision (paras 28-31) and continued: "33 The Medical Experts on the Appeal Panel agree with the AMS as to traffic noise levels and endorse his conclusion that it could not be said that the employment by the respondent was noisy employment. The statistics he relied upon are an accepted standard". 55After agreeing with the AMS's findings that Noble Toyota was not noisy employment, the Appeal Panel then considered the medical and work history of Mr Dening. It noted, first, how it contrasted with the AMS's history and the period in which Mr Dening had been exposed to noisy employment between the 1960s and 1980s (para 35): "35 There was a singular contrast between the history given in the appellant's statement, which we have now admitted, to that taken by the AMS. Dr Fagan the medico-legal specialist retained by the appellant took the same history as was given to the AMS. In his statement the appellant admitted to an apprenticeship as a boilermaker welder and two years of exposure to noise of hammers, grinders, electric saws and workshop noise which was very loud, sometimes for up to ten hours a day..." 56In relation work history that was not before Professor Fagan the Appeal Panel determined: "39. We refrain from drawing any further conclusions but it may explain why it is that the appellant has such a high BHI (Binaual Hearing Impairment)." 57After stating that the noisy employment history of Mr Dening may explain his hearing loss, the Appeal Panel nonetheless went on to say: "40. ...we concur with the AMS that whatever noise the appellant was subjected to whilst working for the respondent, was not sufficient to establish that it had tendencies, incidents and characteristics required to establish noisy employment. 41. Such noise as the appellant was exposed to in his employment with the respondent was not enough to create a rateable impairment. The history given in the appellant's statement is far more consistent with the development of industrial deafness, and the intensity and duration of it may indeed explain the somewhat high BHI that was recorded on the audiogram. 42. Thus, we concur with the opinion of the AMS that none of the BHI was caused by the appellant's employment with the respondent. Although the respondent has admitted that it was the last noisy employer, as a medical issue we are satisfied that such employment was not sufficiently noisy to cause any of the BHI suffered by him. DECISION 43. For the reasons set out in this statement of reasons, the decision in this matter is that: The second Medical Assessment Certificate in this matter should be confirmed."

Judicial review 58Mr Dening seeks judicial review of the decision of the Appeal Panel on the following grounds: (1) The second defendants erred in law and without jurisdiction in determining the issue of "last noisy employer" (2) The second defendants erred in law and without jurisdiction in considering s 323 of the 1987 Act. (3) The second defendants erred in law and without jurisdiction by determining that the plaintiff was not exposed to "noisy employment". (4) There are errors on the face of the record by the second defendants in considering the issues of "last noisy employer" and whether there should be any WIMWA s 323 issue deduction. 59There are two main grounds upon which Mr Dening seeks judicial review, first the noisy employment issue (Grounds 1, 3 and part of 4) and secondly, s 323 deduction (Grounds 2 and part of 4).

(1), (2) and part of (4): Did the Appeal Panel err in law and act without jurisdiction in relation to the last noisy employer? 60The Appeal Panel rejected taking into account the concession email. This was done on the basis that such evidence was not necessary in view of the terms of the referral by the delegate of the Registrar that named Noble Toyota as causing the injury in respect of which the assessment was sought. 61As previously stated subsection 17(1)(c)(ii) specifically relates to a hearing injury and has the effect of deeming that even if a worker engages in noisy employment prior to their last noisy employer, it will be the final noisy employer who will be liable to pay compensation. 62This deeming approach in relation to hearing loss has been a longstanding one. This approach has been adopted because hearing loss may occur over a period of time as a consequence of employment at different noisy workplaces over several years. As far back as 1932 the High Court recognised this situation in Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 (at 449)) when it stated: "The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the sub-section is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by way of contribution.... The employer at the time of, or last before, the incapacity is made primarily liable." 63It was not in dispute that Mr Dening suffered from hearing loss. The Appeal Panel did not take into account the gradual process by which hearing loss can occur. By failing to appreciate the significance of the concession email and by failing to take it into consideration the Appeal Panel misconstrued its jurisdiction in determining the appeal. It erred by not recognising that its task was to determine Mr Dening's claim on the basis that Noble Toyota was deemed the last noisy employer. Noble Toyota was liable for the hearing loss of Mr Dening. It was up to Noble Toyota to recover from previous noisy employers by way of contribution. This ground of judicial review is well founded and relief should be granted.

Consideration of s 323 of the Act 64This ground of judicial review is that the Appeal Panel erred in law and without jurisdiction in considering s 323 of the Act. 65Noble Toyota submitted to the Appeal Panel that the AMS was at liberty to attribute the percentage that he thought appropriate for a pre-existing condition pursuant to s 323 of the Workplace Act. 66Section 323 is a provision setting out how the AMS is to deduct any proportion of the impairment that is due to a previous injury. When subsection 323(1) is read carefully, the deduction is to be made when "assessing the degree of permanent impairment resulting from an injury". As a consequence, s 323 comes into play when an assessment is to be made as to the degree of permanent impairment. The referral to the AMS was to determine the worker's condition and the nature and extent of loss of hearing suffered by him. The referral of the medical dispute did not include an assessment of the degree of permanent impairment. 67Noble Toyota referred the Appeal Panel to Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 as authority for the proposition that the AMS was required to assess the extent of permanent impairment resulting from a workplace injury after deducting any proportion the AMS considers appropriate. Elcheikh deals with a dispute over the degree of permanent impairment of a worker. In Elcheikh Schmidt J identified the matters referred to the AMS as being (at [39]): "whether the resulting impairment was permanent; whether the degree of permanent impairment was fully ascertainable; if it was, the degree of that impairment; and what contribution, if any, his pre-existing condition might have made to that impairment." 68However, in these proceedings, permanent impairment is not in dispute, nor was it referred to the AMS for determination. 69The Registrar referred only two matters to the AMS to be determined. They were (1) the nature and extent of loss of hearing suffered by Mr Dening and (2) if hearing aids were a reasonable and necessary treatment. Both of these issues were to be resolved under subsections (e) and (a) of s 319 of the Act. It was not open for the AMS to go beyond the Registrar's referral to assess other matters such as the degree of impairment. By doing so, the AMS acted beyond jurisdiction. 70There was no dispute between the parties as to Mr Dening's permanent impairment as a result of injury (s 319(c) of the Act), nor whether that finding of permanent impairment must be reduced due to prior injuries or pre-existing conditions (s 319(d)) of the Act). If the degree of permanent impairment was disputed then, pursuant to section 65(3) of the Compensation Act, the Registrar would have made a referral under subsections 319(c) and (d) of the Act. The Registrar did not do so. 71Noble Toyota further contended that the AMS correctly assessed the nature and extent of loss of hearing by finding that "[t]he claimant has a loss of uncertain aetiology not due to noise exposure". 72Subsections 325(2)(a) and (b) set out what is required by the AMS when completing the MAC. That section states that "A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters". Thus, subsections 325(2)(a) and (b) dictate that the AMS is only to assess the specific matters 'referred for assessment'. 73The AMS did not appreciate the import of s 17 nor the limited scope of the task he was asked to undertake. Instead he undertook an assessment. 74However, debate arose during the hearing before this Court as to the role of the AMS in deciding the issue of causation, with counsel for Noble Toyota submitting that (para 24): "It is for an AMS, in assessing the nature of the hearing loss, to determine whether it is causally related to such employment." 75It was contented by Noble Toyota that s 17 of the Compensation Act was merely a 'gateway' provision of limited scope, and that the ultimate determination of liability lies with the findings of the AMS, regardless of whether an employer concedes that they were the last noisy employer. Counsel for Noble Toyota cited McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51 (6 August 2014) extensively to support their proposition. McGowan was a decision that assessed s 17 and the role of the AMS. The Deputy President states (at [57]): "Section 17 is not concerned with true causation of the relevant hearing loss, but 'proceeds on a series of fictions or assumptions' (Civitarese per Beazley JA (as her Honour then was) (Handley and Sheller JJA agreeing) at 160 G). A claimant does not have to establish that his or her employment with the named respondent brought about or contributed to the disease (the hearing loss) (Civitarese at 160G). It is concerned to determine the identity of the employer who employed the worker in employment to the nature of which the injury of boilermaker's deafness was due. That is, the employer who employed the worker in employment whose tendencies, incidents and characteristics could give rise to a risk of industrial deafness." 76This passage is directed towards identifying who was the last noisy employer. Noble Toyota had conceded that it was the last noisy employer. Further, Mr Dening's statement outlines a number of noisy employers over many years. 77It was further submitted by counsel for Noble Toyota that the decisions in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 (11 September 2013) and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (14 August 2014), are relevant to the scope of a medical dispute, and the role of an AMS. Even if these two decisions were to be construed as authority for the proposition that the AMS had jurisdiction to determine liability, they must be distinguished from this case because in both those matters the Registrar referred the AMS to assess issues of permanent impairment as set out by subsections 319(c) and (d), which is not the case here. 78The Appeal Panel was obliged to consider whether the AMS committed a demonstrable error by going beyond the referral of the Registrar. The Appeal Panel has engaged in their own analysis of the AMS's determination and agreed with his determination despite their receipt of the additional evidence. 79The Appeal Panel upheld the AMS's engagement in s 323 of the Act. The Appeal Panel's engagement with s 323 in carrying out an assessment as to whether the permanent impairment should be reduced to nil due to prior injuries or pre-existing conditions fell outside the ambit of referral by the Registrar. Therefore, the Appeal Panel acted beyond jurisdiction. This ground of judicial review is also well founded. 80The result is that the application for judicial review is successful. The decisions of the Medical Appeal Panel issued on 20 February 2014 and the Registrar issued 4 April 2014 are quashed. The matter is referred to the Registrar of the Workers Compensation Commission to be determined in accordance with law. 81Costs are discretionary. Costs usually follow the events. The first defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed. The Court declares that (1) The decision of the Medical Appeal Panel issued on 20 February 2014 is vitiated by error of law. (2) The decision by the Registrar issued on 4 April 2014 is vitiated by error of law.

The Court makes an order: (3) In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel issued on 4 April 2014 and quashing that decision. (4) In the nature of certiorari removing into the Court the decision of the Registrar issued on 4 April 2014 and quashing that decision.

The Court further orders that: (5) The proceedings be remitted to the Registrar of the Workers Compensation Commission to be determined according to law. (6) The first defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2014

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