Aatsco Pty Ltd v Summerfield
[2022] NSWPICMP 298
•20 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | AATSCO Pty Ltd v Summerfield [2022] NSWPICMP 298 |
| APPELLANT: | AATSCO Pty Ltd |
| RESPONDENT: | Gary Summerfield |
| APPEAL PANEL: | Member Paul Sweeney Medical Assessor Joseph Scoppa Medical Assessor Paul Niall |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Industrial deafness; employer’s appeal alleging error by the Medical Assessor (MA) in finding that worker’s noisy employment as a crane operator in Queensland was connected to the state of New South Wales (NSW) and in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for the effect of that work; Held – the MA erred in finding that the work in Queensland was connected to NSW; on reassessment of Queensland employment, less than 12 months in total exposure of 40 years, Panel determines that it is appropriate to make a section 323 of the 1998 Act deduction; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 April 2022, AATSCO Pty Ltd (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 30 March 2022.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Gary Summerfield (the respondent) is 71 years of age. During his working life, he has been employed as a greenkeeper, truck driver, and a crane operator. He states that he was exposed to loud industrial noise, particularly in the latter occupation.
The respondent says that he worked as a crane operator for various employers including Multicon and Alverack between 1972 and 1996. During these employments he was exposed to noise from cranes, plant machinery, trucks, scissor lists, grinders, jackhammer and construction site noise. He was not provided with hearing protection.
After a period of employment as a truck driver, the respondent worked again as a crane operator between 2006 and 2020, save for a short period in 2015, when he was employed as a truck driver. He describes each of these employments as exposing him to loud industrial noise. He was, however, provided with hearing protection in the form of ear plugs.
The respondent last worked as a crane operator for the appellant between 22 September 2015 and March 2020. In respect of that employment he states:
“I was exposed to noise from the engine behind the cabin, timber mills, pulp and paper mills and construction sites.”
He said that in this employment the noise was present throughout his entire shift and was:
“loud to the point where I had to raise my voice in order to communicate with someone at a distance of 1 metre.”
On 18 April 2019, Dr Peter Corlette, an ear nose and throat surgeon, provided a report to the respondent’s solicitors. He expressed the opinion that the respondent suffered sensory- neural hearing loss as a result of exposure to industrial noise. He opined that the appellant was the respondent’s last noisy employer and that after making allowances for hearing loss in the left ear of uncertain aetiology and for presbycusis his total compensable binaural hearing loss was 32.5%. He recommended that the respondent be supplied with hearing aids.
By a supplementary report of 4 September 2019, Dr Corlette expressed the opinion that the entirety of the hearing loss demonstrated on his audiogram from 500Hz to 4000Hz was due to noise exposure at work. He calculated whole person impairment (WPI) at 16%. He made no deduction for a prior injury or pre-existing condition pursuant to s 323 of the 1998 Act.
Dr Kenneth Howison, an ear nose and throat specialist, provided a report to the appellant’s insurer addressing the issue of hearing loss on 6 July 2020. He accepted that the respondent suffered from sensory-neural hearing loss. He considered however that only the frequencies at 1000Hz and above had been “damaged by unacceptable noise levels”. He expressed the opinion that the appellant was the respondent’s last noisy employer. He assessed 11% WPI. He also thought that the respondent would benefit from the use of hearing aids. He continued:
“In view of the noise exposure in Queensland a deduction of 10% is indicated, therefore Mr Summerfield has a binaural high tone sensory-neural noise-induced hearing loss of 20% which represents a whole person impairment of 10%.”
While the respondent’s employment was generally in New South Wales, between 22 November 2012 and October 2013 he was employed by Monadelphous Engineering Pty Ltd as a crane operator in Queensland. During that period he was exposed to similar levels of industrial noise as he described at his various employments in New South Wales.
The difference of opinion as to the quantum of WPI resulting from industrial deafness gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the matter to a medical assessor for assessment of the dispute. It is from the assessment of WPI of Dr Harrison that the appellant appeals.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review the appeal panel determined that it was unnecessary for the worker to undergo a medical examination. As the issue in dispute was whether the MA should have made a deduction pursuant to s 323 in respect of the respondent’s noise exposure while working in Queensland, the panel concluded that a further medical examination would not assist in the resolution of that issue. The panel also noted that neither party sought a re-examination of the worker.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit into evidence documents furnished by Monadelphous Engineering Pty Ltd relating to its employment of the respondent worker in Queensland between 22 November 2012 and 2013.
It argued that before the receipt of the MAC both parties had assumed that the respondent’s employment in Queensland had no connection with the State of New South Wales. Rather, it was Queensland employment.
The respondent did not object to the reception of the Monadelphous material in evidence. Rather, it contended that the documents established that his employment in Queensland was “employment connected with the State of NSW”.
While the panel has some doubts as to the relevance of the Monadelphous material, as the respondent does not object to its tender, the panel determines that it should be admitted into evidence. It will deal briefly with the effect of the documents in its reasons below.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel. In summary, the appellant submits that the MA erred in finding that the employment with Monadelphous in Queensland between 2012 and 2013:
“a matter which falls outside his jurisdiction and remit as prescribed by s 319 and 326 of the Workplace Injury Management and Workers Compensation Act, 1998.”
Secondly, the MA erred:
“in failing to consider and apply s 323 to any hearing loss attributable to employment in Queensland in accordance with s 17 and s 68B(4) of the 1987 Act.”
Thirdly, the appellant reiterated that it was entitled to rely on the Monadelphous evidence as there was “factually no dispute that the relevant employment was outside of the State of New South Wales” before the receipt of the MAC.
Fourthly, the appellant alleged that the MA erred in basing his assessment on incorrect criteria.
In respect of the first ground, the appellant referred to ss 319, 325 and 326 of the 1998 Act. It argued that while the MA was entitled to express an opinion on any matter that fell within the definition of “medical dispute” in s 319, that did not entitle him to make:
“a finding of fact as to the nature of the connection between the Respondent Worker’s employment with Monadelphous between 2012 and 2013 and the State of New South Wales.”
In support of its second argument the appellant submitted that a consideration of the respondent’s written evidence led to the conclusion that his employment with Monadelphous in 2012 and 2013 was “connected with Queensland”. It referred to Peter Chapman v Bricon Construction Pty Ltd (unreported), Compensation Court, 36951 of 2001 (6 December 2001) (Chapman) to support a submission that s 68B(4) necessitated a deduction in respect of hearing loss caused by an employer who was not liable to pay compensation under the Workers Compensation Act 1987 (1987 Act).
In respect of the fourth ground, the appellant referred to 1.27-1.28 of the Guidelines and submitted that the failure to consider the applicability of s 323 in relation to the period of the respondent’s employment in Queensland “was based on incorrect criteria”.
In respect of the appellant’s grounds 1 and 3, the respondent submitted that the references in the contract off employment, produced as part of the Monadelphous documents, to his point of hire being Port Macquarie and Newcastle led to the conclusion that he remained a NSW employee while working for Monadelphous in Queensland. It noted that the contract referred to him as a “non-local employee”. It argued that the phrase meant that he was “non-local to the State of Queensland”, thus there was no error on the part of the MA in determining that the respondent’s employment was in NSW.
In the alternative, the respondent submitted that even should the worker’s employment with Monadelphous be connected with the State of Queensland,
“there is still no basis for a s 323 deduction because s 17 requires that all of the hearing loss is deemed to have occurred in one blow on the deemed date of injury.”
The respondent referred to the decision of the High Court in Commissioner of Railways vBain (1965) 112 CLR 246 and to the discussion of this and other cases by the MAP in Curran v Linfox Armaguard Pty Ltd [2021] NSWPICMP 76 (24 May 2021) (Curran). The respondent continued thus:
“The result of the above authorities is that s 17 does not permit an enquiry into how much noise-induced hearing loss was caused by employment with the respondent compared to any other employment, regardless of when or where that employment occurred. The entirety of the loss is deemed to have occurred on the date determined by s 17 and the employer who last employed the worker in noisy employment is liable to pay compensation for the entirety of the loss.”
To attempt to apportion any part of the respondent’s hearing loss to his employment with Monadelphous was to disregard these authorities and the language of s 17 of the 1987 Act. Accordingly, the respondent submitted that the appeal should be dismissed.
LEGISLATION
Section 68B(4) of the 1987 Act deals with deductions for previous injuries and pre-existing conditions when ss 15, 16, 17 and 22 of the Act are operative. Relevantly, s 68B(4) is as follows:
“When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following—
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker's employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,(b) for the purposes of paragraph (a),
‘previous relevant employment’ is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).”
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), the Court of Appeal held that the appeal panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
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 MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The MA dealt with the history of noise exposure in the respondent’s employment as follows:
“So the history that I obtained was of 54 years of working with only the job prior to the respondent as a truck driver not exposing him to significant noise (this was for six months in 2015) when the employer was West Trusses and Frames. I found that his 11 months employment in Queensland in 2012 and 2013 with Monadelphous was really employment in NSW because he was sent up there by this company which is a New South Wales company. So all of his employment has been in NSW and all of it except for 6 months appears to have exposed him to noise with the potential to damage hearing so that there is a history of 53 years of noise exposure at work. He never wore hearing aids before commencing with the respondent.”
It is apparent that there are discrepancies between the respondent’s statement and the history recorded or assumed by the MA. He has recorded that the respondent was not exposed to noise in only one job prior to his employment with the appellant. But the respondent recounts he had worked as a truck driver for several employers. He was, for example, employed by Wingham Frames and Trusses between 1996 and 2001, by an employer whose name he cannot recall between 2001 and 2003, and by Stan Lee Truck Supplies between 1970 and 1972. The respondent says that he was not exposed to noise in these employments. The MA does not explain this discrepancy.
The facts on which the MA has concluded that the respondent’s work with Monadelphous in Queensland “was really employment in NSW” are also not apparent from a reading of the MAC. According to the respondent’s statement, he worked for the Tetris Group Pty Ltd in NSW until October 2012 and then “was employed by Monadelphous Engineering Pty Ltd as a crane operator in Queensland” for a period of 11 months. It is not evident on what basis the MA concluded that Monadelphous was “a NSW company”. He may have been told that by the respondent.
Whether an employment is connected with the State of NSW is governed by 9AA of the 1987 Act. It is unnecessary to reproduce the section in these short reasons. It has been said that it provides a cascading or hierarchical series of tests to determine whether a worker is sufficiently connected with a particular State or Territory[1]. It is not evident that the MA has engaged with the test required by the section in reaching his conclusion. It is also doubtful, as the appellant argues, whether an MA has jurisdiction to determine this question in any event as it is appears to be a liability question for the Personal Injury Commission.
[1] See Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 (4 August 2010) for an example of the operation of the section.
As the basis of the MA’s reasoning is not apparent and as he has reached a conclusion that is in conflict with the written evidence before him, the panel is of the opinion that there is a demonstrable error in the MAC. It is, at least, necessary for the panel to be able to ascertain the path by which the MA reached a conclusion. That path is not apparent in this case. As there is error in the MAC, it is necessary for the panel to reconsider the question of whether there should be a deduction pursuant to s 323 for a prior injury or pre-existing condition.
Both parties made submissions on the assumption that the panel would determine the issue of whether the respondent’s employment in Queensland with Monadelphous was employment connected with the State of NSW. It is not clear, however, that the panel has jurisdiction to determine that question. However, the panel is of the view that the MA should have accepted the unambiguous evidence in the respondent’s statement that he worked in Queensland for Monadelphous. That was the factual basis of the medical dispute referred for assessment.
In Pereira v Siemens Limited [2015] NSWSC 1133 (21 August 2015) (Periera), Garling J addressed the issue of whether a MAP was in error in upholding a substantial deduction pursuant to s 323 made by an MA in respect of the worker’s noisy employment in Pakistan before his emigration to Australia. Neither party suggested that a deduction could not be made as a matter of law. The parties appeared to assume that s 17 applied with respect to a hearing which occurred outside of New South Wales. In respect of the issue pursuant to s 323 his Honour said at [81]-[90]:
“The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq)[2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].
82. The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker’s claim.
83. The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
84. The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
85. The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase “pre-existing condition or abnormality” is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
86. A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
87. The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
88. It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
89. Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
90. Each of these steps, and considerations, is a necessary element of a determination that an assessed whole person impairment is to be reduced by a deductible proportion by virtue of the application of s 323 of the 1998 Act.”
It is not evident how the MA reached the conclusion that the respondent had 53 years of noise exposure at work. But it is evident that he worked as a crane operator or greenkeeper in employments in which he was exposed to industrial noise for approximately 40 years. Less than a year of that employment was outside the state.
The panel accepts that the respondent suffered sensorineural hearing loss during that time. Assuming that the loss can be characterised as “previous injury or pre-existing condition”[2] as these terms are used in s 323 of the 1998 Act, it is necessary to enquire as to whether this very short period of employment contributed to the respondent’s impairment.
[2] CF Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 146 (28 September 2015) (Cullen).,
The panel concluded that it was unlikely that the noise exposure in Queensland would have altered the level of WPI found by the MA. Its effect on the respondent’s hearing ranges from negligible to none. A conclusion that it gave rise to a difference in the degree of impairment found on assessment is purely speculative. Dr Howison gave no reasons for concluding that there should be a deduction of 1/10th pursuant to s 323 other than that the applicant worked in Queensland for a period of 11 months. It is not apparent that he considered whether this employment would alter the WPI which he found on his examination.
In reaching this conclusion, the panel adopts the reasoning of the MAP in Hart v UGL Engineering Pty Limited [2015] NSW WCCMA 6 (Hart) that hearing loss is likely to be greater in the first few years of exposure to noise[3]. If compelled to speculate, the specialist medical practitioners on the panel would suggest that the disparaged straight line method of attribution, modified in accordance with the reasoning in Hart to weight the early years of exposure to noise, would result in a deduction of 2/100th or 2%. Again, this would have no effect on the WPI certified by the MA.
[3] “The medical members of the panel note that noise-induced hearing loss almost always results in a symmetric, bilateral hearing loss. It is of gradual onset, cumulatively occurring, initially at frequencies of 4000 and 3000 kHz (not in speech frequencies). Over the years, it graduates to lower frequencies, such that the claimant then starts to notice or appreciate hearing loss. It is a slowly progressing medical condition. Loss of hearing is not linear, but it has a tendency to be linear. In the first few years of exposure to noise, the hearing loss is greater than later.”
It also must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principles enunciated a very long time ago in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden 114 CLR 164 have application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Act is also of ancient lineage: see Sadler v Commissioner for Railways (NSW) (1969) 123 CLR 216. It is necessary for an employer to point to evidence that the pre-existing condition will cause a difference in the level of impairment.
As the panel has concluded that the evidence does not support a deduction in respect of prior injuries or pre-existing conditions which would alter the certification in the MAC, it is unnecessary to consider whether the employment in Queensland can be characterised as a “prior injury” or whether it was simply an injury “outside the course of the employment” in New South Wales in accordance with the reasoning in Cullen.
It is also unnecessary to consider the respondent’s argument based upon Curran that as s 15 provides that the injury occurs “at one below” at the time a claim is made there is no scope for the operation of s 323. At issue in Curran was whether deafness caused by interstate employment subsequent to the last “noisy employment” in New South Wales could be the subject of a deduction. It was common ground that s 323 of the 1998 Act had no application to these facts. That case did not consider the application of s 68B which appears to assume, that provided the requirements of s 323 are met, a deduction should be made in respect of relevant employment in another state.
Certainly, some of the reasoning in Curran is wide enough to preclude any deduction for deafness resulting from interstate or overseas employment. But that is an argument for another case. The interaction between ss 17 and 68B of the 1987 Act and s 323 of the 1998 Act can be considered when the facts require determination of the issue.
While the panel has found error in the MAC, a reassessment has led to the same result reached by the MA. Accordingly, for these reasons, the Appeal Panel has determined that the MAC issued on 30 March 2022 should be confirmed.
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