Almeida v Metsquare Pty Ltd
[2021] NSWPICMP 8
•8 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Almeida v Metsquare Pty Ltd [2021] NSWPICMP 8 |
| APPELLANT: | Mario Almeida |
| RESPONDENT: | Metsquare Pty Ltd |
| APPEAL PANEL: | Mr John Harris Dr Robert Payten Dr Joseph Scoppa |
| DATE OF DECISION: | 8 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant suffered binaural hearing loss where recent employment in New South Wales restricted to one-year noisy employment and prior noisy employment in Queensland extended over 22 years; appellant complained of hearing loss over seven years with a five-year history of tinnitus; AMS applied a deduction pursuant to section 323 of 22/29th based on a linear method of exposure to noisy employment in Queensland as opposed to employment in New South Wales; Held- section 323 applies to hearing loss deemed to have occurred pursuant to section 17. Reference made to section 68B(4) of the 1987 Act and observations in Pereira v Siemens Ltd; appellant’s evidence that he had a seven year history of hearing loss was compelling evidence that there was a pre-existing injury prior to the employment in New South Wales; AMS and Appeal Panel satisfied that there was pre-existing injury which contributed employment despite absence of any prior audiogram; the facts of the case warranted a substantial section 323 deduction; Appeal Panel declined to intervene with the deduction made by the AMS as it was within the range of permissible outcomes; Vannini v Worldwide Demolitions Pty Ltd applied; appeal dismissed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
Mr Mario Almeida (the appellant) suffered binaural hearing loss injury in the course of employment with Metsquare Pty Ltd (the respondent) deemed to have occurred on 17 October 2019.
A claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by letter dated 17 October 2019.[1] The s 66 claim was based on the report of Dr Lucchese dated 12 September 2019.[2]
[1] Application to Resolve a Dispute (Application), p 2.
[2] Application, p 10.
Dr Lucchese assessed the appellant at 25.6% binaural hearing loss. He added a further 2% for severe tinnitus. The total of 27.6% binaural hearing loss translated to 14% whole person impairment (WPI). Dr Lucchese did not refer to and made no deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Dr Williams was qualified by the respondent and provided a report dated 16 December 2019.[3] Dr Williams assessed the appellant at 17% WPI for hearing loss. The doctor then apportioned the hearing loss relevant to employment in New South Wales at 3/38th of the total loss and rounded it to 1% WPI.
[3] Reply p 1.
By letter dated 23 October 2019 the respondent denied liability because the injury did not result in permanent impairment greater than 10% as required by s 66(1) of the 1987 Act.
The claim was listed before a Commission Arbitrator on 14 September 2020 who made orders remitting the matter to the Registrar for referral to an Approved Medical Specialist.
The Registrar then referred the medical dispute to Dr Raj, an Approved Medical Specialist (AMS).
The AMS examined the appellant and provided the Medical Assessment Certificate dated 27 October 2020 (the MAC). The AMS assessed the appellant as suffering from 62.6% binaural hearing loss of which 11.5% was non-related loss and corrected 1.3% for presbycusis. The AMS otherwise allowed 2% for severe tinnitus which resulted in overall impairment of 26% WPI.
The AMS then made a “pro-rata deduction for noise outside New South Wales” and assessed hearing loss after the deduction at 6% WPI.
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[4] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[5]
[4] The 4th edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998.
[5] Clause 1.1 of the fourth edition guidelines.
THE APPEAL
On 12 November 2020, the appellant filed an Application to Appeal Against a Medical Assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission).
The WorkCover Medical Assessment Guidelines (the Guidelines) set out the practice and procedure in relation to appeals to Medical Appeal Panels under s 327 of the 1998 Act.
The appellant claims that the medical assessment should be reviewed on the ground that the MAC contains a demonstrable error and/or the assessment was made on the basis of incorrect criteria within the meaning of s 327(3) of the 1998 Act.
The Appeal was filed within 28 days of the date of the MAC. The submissions in support of the grounds of appeal are referred to later in these Reasons.
PRELIMINARY REVIEW
The Appeal Panel (AP) conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. As a result of that preliminary review, the AP determined, for the reasons provided subsequently, that no ground of appeal had been established.
The AP is now constituted as part of the Personal Injury Commission although the appeal was filed when the AMS provided his decision in the Workers Compensation Commission. The members of the AP remain members of the Personal Injury Commission.
EVIDENCE
The AP has before it all the documents that were sent to the AMS for the original assessment and has referred to portions of the evidence and taken them into account in making this determination.
GROUND OF APPEAL – INCORRECT CRITERIA
Submissions
Appellant’s submissions
The appellant referred to the findings by the AMS of 26% WPI due to noise exposure in Queensland and New South Wales. It referred to the finding at paragraph 11 of the MAC where the AMS stated the loss due to noise exposure in Queensland was 15% WPI.
The appellant submitted that it was “unclear” how the AMS arrived at this figure as elsewhere in the MAC the AMS assessed the loss in New South Wales at 6% based on a proportion of 7/29th of 26%.
The appellant submitted:
“If it is accepted that the total WPI is 26% and that of this amount 15% WPI is attributable to work in Queensland, then it follows that the balance, 11% WPI, arises from work in NSW, not 6% as stated in the Medical Assessment Certificate.”
Respondent’s submissions
The respondent submitted that the reference to 15% WPI caused by employment in Queensland was a typographical error. This is because the calculations are set out at Table 4, page 7 of the MAC where the AMS arrived at 6% WPI based on a pro-rata contribution of 7/29 years.
The respondent referred to the calculations and conclusions made by the AMS which were unaffected by the typographical error at Part 11 of the MAC.
Reasons
At Part 11 of the MAC, the AMS stated:
“• the nature and extent of hearing loss suffered by a worker (s319(e)).
= 62.6%BHI = 31% WPI
• The degree of permanent impairment of the worker as a result of an injury (s319(c)).
= 26 %WPI. Injury in NSW = 6%WPI
• Whether any proportion of permanent impairment is due to any previous injury or pre- Existing condition or abnormality, and the extent of that proportion (s319(d)).
a) The loss at 500Hz.
b) The loss due to exposure to noise in Queensland is calculated to be 15%WPI.
• Whether impairment is permanent (s319(f)).
Yes, the impairment is permanent.”
In the Table at the conclusion of the MAP the AMS set out the following figures:
“TOTAL 62.6% BHI: = 31%WPI
Less Pre-existing non-related loss: 11.5%BHILess Presbycusis correction: 1.3%BHI
Add % of severe tinnitus: 2%
Adjusted total 51.8% BHI
Resultant total is 26% WPI
Pro-rata deduction for noise outside NSW is the fraction 7/29The amount to be compensated is 26 x 7/29= 6.27% rounded to 6%WPI”.
The appellant accepted the assessments of overall binaural hearing loss and the deductions due to “non-related loss” and presbycusis. Accordingly, it is not in dispute that the hearing loss due to employment in New South and Queensland is 26% WPI.
The AMS made a pro rata deduction for employment outside New South Wales based on a linear time on risk basis, that is 29 years of noisy employment of which seven years occurred in New South Wales. The final calculation of 6% WPI, after some rounding, accords with the fraction of 7/29th of 26%.
Earlier in the reasons the AMS stated that loss for “injury in NSW” was 6% WPI and otherwise stated that the loss due to exposure in Queensland was 15% WPI.
We agree that the respondent’s submission that the reference of 15% WPI due to exposure in Queensland is a typographical error. The reasons must be read as a whole. The AMS has applied a linear method based on time on risk and quantified the loss due to employment in New South Wales as 7/29th multiplied by 26% WPI.
The AMS ultimately concluded that the hearing loss in New South was 6% WPI due to the reasons set out herein. Those reasons directly contradict the appellant’s submission that the AMS otherwise concluded that the loss in New South Wales was 11% WPI.
We reject the appellant’s ground of appeal.
GROUND OF APPEAL – Section 323
Submissions
Appellant’s submissions
The appellant referred to the way the AMS made a deduction based on noise outside New South Wales on a pro rata basis. Reference was made to the decision of Pereira v Siemens Ltd[6] (Pereira). It was emphasised that assumptions did not suffice in establishing a pre-existing injury.
[6] [2015] NSWSC 113.
The appellant submitted that the AMS fell into error because “there was no evidence which demonstrated a pre-existing condition or abnormality”. Reference was made to the histories recorded by the AMS, Dr Williams and Dr Lucchese and submitted that “nothing in the histories demonstrates a pre-existing condition or abnormality”.
It was submitted a prior audiogram would constitute sufficient evidence of a pre-existing condition or abnormality. However, the appellant’s own observations that he suffered from a seven-year history of gradual progressive hearing loss “does not provide evidence of a pre-existing condition or abnormality”. It was then submitted:
“At most, such a history might arguably suggest that noise exposure in Queensland over the last few years of the worker’s employment might have caused some damage to the worker’s hearing, but such evidence would not justify a ‘pro-rata deduction for noise exposure outside of NSW’ encompassing he whole 22 years of the worker’s employment in Queensland.”
The adoption of a pro-rata approach on the evidence before the AMS was an exercise in “assumption or speculation”. Reference was made to Reynolds v Rus Mining Services Pty Ltd[7] which supports the proposition that pro-rata test ignores the individual circumstances at which damage is caused through exposure to noise and is an unacceptable test.
[7] [2019] NSWDC 515.
The appellant otherwise submitted that if there was a s 323 deduction, in the absence of an audiogram as to the extent of the hearing loss in Queensland, it should be presumed to be 10% because the proposition is difficult to determine and not at odds with the available evidence.
Respondent’s submissions
The respondent submitted that the appellant’s submission of an absence of evidence “is untenable” and is at odds with the history that the appellant had hearing loss prior to leaving Queensland.
The history provided to Dr Lucchese was that the appellant became aware of hearing loss some eight years previously and developed tinnitus in the last five years. A similar history was provided to Dr Williams.
The respondent submitted that the appellant’s “own evidence supports a finding that there is ample persuasive evidence of prior hearing loss for the purposes of s 323 of the 1998 Act.”[8]
[8] Respondent’s submission, [17].
The respondent referred to the AMS’s finding that the hearing loss suffered by the appellant in Queensland was a pre-existing injury and that the hearing loss suffered in New South Wales and Queensland was similar. In these circumstances it was “open” to the AMS to use the methodology adopted in the MAC.
The respondent alternatively submitted that if the AMS is found to have made a demonstrable error based on the straight-line method of attribution of deafness then a deduction under s 323 should be applied.
The respondent referred to the employment in Queensland from 1995 to 2018 and the opinions of the AMS and Dr Williams that this exposure contributed to the appellant’s permanent impairment. The appellant was aware of hearing loss prior to the commencement of the employment in New South Wales.
It was submitted that the deduction under s 323 should be considerable. The evidence of noise exposure between 1995 and 2018 is prima facie evidence which is at odds with a deduction on one-tenth. The deduction should represent a proportion of at least three-quarters noting the periods of exposure to noise and the opinions of the various doctors.
Reasons
In his statement dated 15 August 2020, the appellant stated that he was born in 1957 and worked for 12 years in noisy employment before coming to Australia in 1987. The appellant worked in New South Wales in demolition work until 1995. During that period, he was exposed to jackhammers, compressors and grinders.
The appellant was employed by Wideform in Queensland from 1995 to October 2018 as a labourer in high rise construction where he was exposed to loud noises such as jackhammers, drills and electric saws. Hearing protection was worn.
From November 2018 the appellant was employed by the respondent in similar employment to the work in Queensland. He stated that he wore hearing protection which would fall out.
The appellant first noticed hearing problems in 2012 which became progressively worse. He also developed tinnitus in about 2015.
Dr Lucchese examined the appellant in September 2019.The doctor recorded a similar history of exposure. The doctor noted that jackhammers were in the range of 101-105 db(A) and power tool were 95-98 db(A).
Dr Lucchese concluded that the hearing loss “would be considered attributable in part to his employment” with the respondent.
Dr Williams examined the appellant in December 2019. The doctor recorded a similar history of seven years of progressive hearing loss and five years of tinnitus.
Dr Williams recorded a similar history of noise exposure at work in Queensland and for the last year of work in New South Wales. In both employments the appellant wore hearing protection.
Dr Williams stated:
“I noted he was working in hazardous conditions for 38 years in total. 3 of those years
was in NSW. The hazardous noisy exposure has contributed to his permanent
impairment even though asymptomatic. Accordingly, I have made a deduction on a
time-weighted basis for hazardous occupational noise exposure even ifasymptomatic.”
The AMS recorded a history of hearing loss “specifically worse since 2018”. The work history was of five years noisy employment in New South Wales from the late 1980’s and then work as a formworker in Queensland from 1995 to 2018. Hearing protection was described as mandatory with exposure to hammers, compressors and jackhammers. Conversations with colleagues required a raised voice.
The appellant provided history of similar noise exposure with the respondent.
The AMS disregarded the noise exposure in Portugal because it was “insufficient to cause significant hearing loss”. When commenting on the relevant exposures in New South Wales and Queensland, the AMS stated:[9]
“If the 29 years of noise exposure, 22 years is in Queensland. The noise exposure in Queensland and NSW are similar. It is appropriate to apply pro-rate deduction for noise exposure outside NSW.”
[9] MAC, p 4
The injury is deemed to have occurred on 17 October 2019 pursuant to s 17 of the 1987 Act. The appellant did not submit that s 323 cannot apply to an injury deemed to have occurred pursuant to s 17 of the 1987 Act.
In Pereira, the Court observed that the loss of hearing due to the prior overseas employment was a matter that potentially attracted the operation of s 323(2) of the 1998 Act.[10]
[10] Pereira at [108].
In State of New South Wales v Calvert[11] the Medical Appeal Panel held that s 323 applied to s 17. That decision was based on the observations in Pereira and the terms of s 68B(4) of the 1987 Act. A similar conclusion was reached by an Appeal Panel in Asbestos Remover & Demolition Contracts Pty Ltd v Kruse.[12]
[11] [2020] NSWWCCMA 187.
[12] [2017] NSWWCCMA 51 (Kruse).
Section 68B(4) provides that s 323 applies to s 17 of the 1987 Act save that there is to be “no deduction” to impairment that is due to a worker’s employment in “previous relevant employment”. “Previous relevant employment” is defined in s 68B(4)(b) to mean employers who are liable to contribute under s 17.
In these circumstances we accept that s 323 applies to injuries deemed to have occurred pursuant to s 17.
We otherwise observe that the appellant’s employment in Queensland occurred in circumstances where he was residing and working in that State over an extensive period. Neither party suggested that the provisions of s 9AA of the 1987 Act would deem that employment to be other than connected with the State of Queensland.
A deduction pursuant to s 323 of the 1998 Act is required if a proportion of the permanent impairment is due to previous injury or due to pre-existing condition or abnormality: Vitaz v Westform (NSW) Pty Ltd.[13]
[13] [2011] NSWCA 254.
In Vannini v Worldwide Demolitions Pty Ltd[14] Gleeson JA stated that an Appeal Panel, when considering the reasoning of an Approved Medical Specialiston the question of causation under s 323, was required to determine “whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality” and if so, “what was that proportion”.[15]
[14] [2018] NSWCA 324 (Vannini).
[15] At [90].
The onus of proof in establishing the s 323 defence lies on the employer. In Kruse, a Medical Panel concluded that the onus of proof was on the employer to establish a non-compensable cause in industrial deafness cases.20 Reference was made by that Panel to the observations of Barwick CJ in Sadler v Commissioner for Railways[16] and Garling J in Pereira.
[16] (1969) 123 CLR 216.
In Matthew Hall Pty Ltd v Smart[17] Giles JA accepted the employer’s concession that it bore the burden in establishing a deduction under s 68A (the statutory predecessor to s 323).
[17] [2000] NSWCA 284 at [37].
The evidence overwhelming establishes that the appellant suffered from a previous injury or pre-existing condition prior to the employment with the respondent. This conclusion is based on the appellant’s statement and is consistent with histories provided by the appellant to Dr Williams and Dr Lucchese that he was suffering from hearing loss of some seven years duration. The appellant’s submission that there was “no evidence” of a previous injury or pre-existing condition simply ignores the appellant’s history that there was previous hearing loss and tinnitus prior to the employment in New South Wales.
Pereira does not stand for authority that there must be a prior audiogram to establish a previous injury or pre-existing condition of hearing loss. As a matter of logic and commonsense there is no reason, contrary to the appellant’s submission, why a worker cannot say that he or she had a prior hearing loss. That is what the appellant did in his statement and the histories provides to both Dr Williams and Dr Lucchese. Based on those histories and statement evidence, which we accept, the appellant undoubtedly had a pre-existing hearing loss prior to employment with the respondent.
Dr Williams otherwise referred to the nature of the exposure in the employment undertaken in Queensland. That history involved exposure to jackhammers, compressors and hammerdrills for nine hours a day, six days per week over 22 years. Despite the wearing of hearing protection, the concurrent loss of hearing loss with tinnitus at a time when this employment was undertaken shows a strong causal link between the Queensland employment and hearing loss.
We also observe that Dr Lucchese opined that the hearing loss was “attributable in part” to the employment in New South Wales. There was no suggestion by Dr Lucchese that the employment in Queensland did not contribute to the extent of the hearing loss.
We agree with the opinion expressed by the AMS that there was a pre-existing injury contributing to the extent of the impairment and that the employment over an extensive period contributed to the loss. Medical knowledge establishes that continued exposure to loud noise causes a progression in hair cell damage within the cochlea. Having to raise the voice at one metre to be heard is indicative of a noise level of 90 dB, which will cause hair cell damage from exposure for eight hours per day, five days a week.
Hair cell damage occurs in the basal coil of the cochlea, involving the first 10 millimetres and damages the hearing at 3.0, 4.0 and 6.0 KHz, even if asymptomatic. Hair cells along the further length of the cochlea also become progressively damaged the longer the exposure to loud noise, causing a progressive hearing loss for the lower frequencies as well as worsening the hearing loss in the higher frequencies.
The damage is irreversible and permanent.
The appellant alternatively submitted that the statutory deduction under s 323(2) should apply “in the absence of any evidence from an audiogram”.
Section 323 of the 1998 Act relevantly provides:
“(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.”
A deduction of one-tenth in this matter would be inconsistent with the available evidence.
That evidence includes the appellant’s history of noise exposure in Queensland, the history of prior hearing loss in Queensland commencing some six years before returning to New South Wales and the development of tinnitus shortly after the commencement of the appellant noticing hearing loss.
Based on a correct history, Dr Williams assessed a significant proportion of the hearing loss as being a pre-existing condition or previous injury. Dr Lucchese did not express a contrary view.
We agree with the view expressed by Dr Williams and that expressed by the AMS that a significant proportion of the appellant’s hearing loss was due to the employment in Queensland.
In our view a deduction of one-tenth would be at odds with the accepted evidence in this matter.
The appellant otherwise submitted that a “linear approach” would be “an error of law”. Other than the submissions made above, it is unclear how the appellant submitted that the AMS erred in law.
As we stated, in rejecting the appellant’s submission that the statutory deduction should not apply because it is at odds with the available evidence, we agree that any s 323 deduction should be substantial. The AMS made a deduction of 22/29 (approximately 76%) based on a linear approach.
The AP agree that the s 323 deduction should be substantial.
In Vannini Gleeson JA referred to the issue that extent of the deduction permitted “some latitude” as to a range of permissible outcomes. His Honour stated:[18]
“The position may be different in relation to the second question. A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the ‘proportion’ of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.”
[18] At [92], Macfarlan JA and Barrett AJA agreeing.
We accept that there is a medical basis for finding a linear relationship between the duration and loudness of noise exposure and the number of hair cells damaged. That approach was open to the AMS. It is not a demonstrable error merely because the AP disagrees with the opinion expressed by the AMS and that it would substitute a different deduction that was within a permissible range: Vannini.[19] Furthermore, the appellant’s history of a seven-year hearing loss, most of which occurred whilst he was employed in Queensland, is strong evidence that a significant proportion of the hearing loss was due to the prior Queensland employment.
[19] At [87].
In these circumstances we do not accept that there was a demonstrable error in the circumstance of this case. We accept that a s 323 deduction to the extent made by the AMS was open on the facts of this case.
For these reasons provided, the AP concludes that the final determination in the Medical Assessment Certificate is correct.
DECISION
The MAC given in this matter is confirmed.
0
6
0