Armstrong v Gosford Stone & Terrazzo Pty Ltd
[2022] NSWPICMP 269
•6 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Armstrong v Gosford Stone & Terrazzo Pty Ltd [2022] NSWPICMP 269 |
| APPELLANT: | Raymond Armstrong |
| RESPONDENT: | Gosford Stone & Terrazzo Pty Ltd |
| APPEAL PANEL: | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Robert Payten |
| DATE OF DECISION: | 6 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Noise induced hearing loss; inclusion of loss at low frequencies; extent of Medical Assessor’s reasons; section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for period of National Service; Pereira v Siemens Limited discussed; Medical Appeal Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 May 2022 Raymond Armstrong lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sylvester Fernandes, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 April 2022.
Mr Armstrong relies on the grounds of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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
Mr Armstrong was employed by Gosford Stone & Terrazzo Pty Ltd (Gosford Stone) from 2005 to 16 November 2006 as a fabrication worker. There is no dispute that Gosford Stone was his last noisy employer.
Mr Armstrong commenced employment as an apprentice boilermaker in 1955 and he worked as a welder and steel fabrication worker throughout his working life. He undertook National Service and served in the Citizen Military Forces (CMF) from 1954 to 1955 as a gunner. He worked in noisy employment for the whole of his working life. He said that he had noticed problems with his hearing for 30 or 40 years. He made a previous claim for compensation for industrial deafness in 1998 for which he received compensation.
The Medical Assessor assessed a total of 53.2% binaural hearing loss but said that only the losses at 2,000, 3,000 and 4,000 Hz were work related, resulting in 24.8% work related hearing loss. He made a deduction of 17.5% for presbyacusis and allowed 2% for severe tinnitus, resulting in binaural hearing loss of 9.3%. The Medical Assessor made a deduction of 5% or one-twentieth under s 323 of the 1998 Act for the loss suffered during National Service. The resulting total was 8.8% binaural hearing loss which converts to 5% whole person impairment.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because the assessment made by the Medical Assessor was a valid exercise of his clinical judgement.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Armstrong, through his solicitor Mr Glavin, submitted that the Medical Assessor made demonstrable errors in failing to include the losses at 500, 1,000 and
1,500 Hz and in making a deduction for the period of National Service.Mr Armstrong said that he had at least 40 hours of intense noise exposure for more than 50 years so that it was an error not to include the losses at the lower frequencies. Noting the obligation on a Medical Assessor to provide adequate reasons, Mr Armstrong said that the Medical Assessor had failed to explain why he had concluded that the magnitude of the loss and the gradient of the fall at 1,500 Hz was inconsistent with noise induced hearing loss. He said that the Medical Assessor’s statement that it was possible that the damage to the hair cells of the cochlea has occurred from a co-existing non noise induced process was not supported by evidence.
Mr Armstrong said that the greater the noise exposure, the greater the likelihood that the lower frequencies have been effected, referring to the Medical Panel decision in Shone v Country Energy[1] (Shone). He said that Shone “provides” that the lower frequencies can be taken into account “depending on the facts in each individual matter” including the nature and duration of the exposure and the extent of the losses. He said that Shone “provides” that neither AMA 5 nor the Guidelines require that the losses at the low frequencies be excluded. The submissions quote from the Medical Panel decision in Shone and set out the losses assessed in that matter, arguing that the thresholds were the same as Mr Armstrong’s at
500 Hz and 1,500 Hz.[1] [2007] NSWWCCMA 18.
The second ground of appeal is that Mr Armstrong’s history of National Service should not have been taken into account and Mr Armstrong noted that authorities such as Commissioner forRailways v Bain[2] (Bain) say that the precursor of s 17 of the Workers Compensation Act 1987 (the 1987 Act) deemed that all of the noise induced hearing loss happened “in one blow”. Mr Armstrong referred to a Medical Appeal Panel decision which quoted extensively from Bain[3] and to the Court of Appeal decisions in Blayney Shire Council v Lobley[4] (Lobley) and Rico Pty Ltd v Roads and Traffic Authority (Rico)[5]. Mr Armstrong submitted that those authorities confirmed that s 17 does not permit an enquiry as to how much of the noise induced hearing loss was caused by any particular employment and that the last noisy employer was responsible for the loss. He quoted from the Medical Appeal Panel decision in Hay v Stanton Family Trust t/as Lakeside Leisure Village[6] in which the panel declined to make a deduction for a period of self-employment.
[2] (1965) 112 CLR 246.
[3] Curran v Linfox Armaguard Pty Ltd [2021] NSWPICMP 76.
[4] (1995) 12 NSWCCR 52.
[5] (1992) 28 NSWLR 679.
[6] Unreported M1-6422/20 8 June 2021.
In reply, Gosford Stone submitted that it was open to the Medical Assessor not to include the losses at the low frequencies and that he provided adequate reasons. It cited a Medical Appeal Panel decision[7] concerning a worker who had worked for 48 years in noisy employment in which the panel declined to include the low tones because the progression of the loss was not clinically significant. Gosford Stone said that the Medical Assessor’s finding was a matter of clinical judgement for which he had given adequate reasons.
[7] Maggos v Nuplex Industries (Aust) Pty Ltd [2016] NSWWCCMA 165.
With respect to the s 323 deduction, Gosford Stone argued that any period of National Service was not “relevant employment” as defined in s 17, being the responsibility of the Commonwealth. It noted the Medical Appeal Panel decision of Fire and Rescue NSW v Hill[8] in which it was determined that exposure to gunfire during army service was a previous injury which fell squarely within s 323.
[8] [2016] NSWWCCMA 109.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. 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.
In Campbelltown City Council v Vegan[9] (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.
[9] [2006] NSWCA 284
The MAC
The Medical Assessor said that Mr Armstrong told him that he had been exposed to loud noise over a period of time in the workplace and that he had been provided with hearing protection for about two years. The Medical Assessor said:
“He did National service for 3 months and served in the CMF for 2 years subject to
ammunition noise exposure.
FIREARMS EXPOSURE in Service
TYPE/CALIBRE
YEARS
TIMES/yr
AV#ROUNDS/time
HP*
25 pounder gun
3 mos
4
6-8
no
.22 rifle
3 mos
4
100
no
Mortar gun
3 mos
4
8-9
no
*Hearing protection
This exposure is considered material and hence s323 of the Work Injury Management and Workers Compensation Act 1998 will apply. He incurred a ruptured right tympanic membrane during the mortar exercises reinforcing the materiality of the noise exposure.”
The Medical Assessor set out the history of Mr Armstrong’s employment, accepting that it was all noisy. He set out his findings on examination, including that both tympanic membranes were intact. The Medical Assessor summarised his diagnoses:
“1. Noise induced hearing loss in the upper middle and treble frequencies and
2. an excess loss of uncertain origin (non occupational*) in the bass and lower middle frequencies and
3. age related hearing loss.”
When providing his reasons for the assessment the Medical Assessor said:
The frequencies below 2 KHz are not included in the calculation because:
1. The configuration of the audiogram (magnitude of loss and gradient of fall) obtained at 1.5 KHz is not compatible with that of a noise induced hearing loss. Such a degree of fall does not occur at this frequency in noise induced hearing loss. (Position Statement on Noise induced Hearing Loss. American College of Occupational and Environmental Medicine 2002; Taylor W, Pearson JC, Mair A, Burns W (1965) Journal of the Acoustic Society of America, 38, 113; Burns W, Hinchcliffe R, Littler TS (1968) Noise and Man. London: John Murray).
On a pathological basis it is possible that the damage to the hair cells of the cochlea has occurred from a co-existing non noise induced process that obliterated the damage by occupational noise to occur. Even the totality of the losses at 2 KHz is also not wholly attributable to noise exposure. However as there is no scientifically legitimate method of apportioning each such pathology, I have considered the whole loss at each of the frequencies of 2, 3 and 4 KHz as due to occupational noise exposure and ignored that at the still lower frequencies, as noise will more likely than not, affect the frequencies of 2, 3 and 4 kHz.
Hence after consideration of the nature and duration (immission levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 2, 3 and 4 KHz are caused by his occupational noise exposure.
Shone v Country Energy (2007) NSW WCC MA 18 is perennially implored as authority for inclusion of the lower frequencies, in an effort to ascribe to Shone a ‘regulatory science’ status. It is important to understand that it is not possible to impart the ‘bright-line’ of certainty of law to an essentially fluid subject (that is a function of several variables) requiring a clinical judgement (See also ‘Richardson’ [2013] NSW WCC MA 56) and fundamentally requires each case to be judged on its merits.
In making that assessment I have taken account of the following matters:-
1. Type and duration of noise exposure (immission levels)
2. Type of hearing impairment
3. Mode of onset and progression
4. Shape of audiogram
5. Presence of a dip or ‘bulge’ around 4 kHz
6. Clinical picture
7. No competing diagnoses and complications
8. The range of frequencies affected by the hearing loss
9. The degree of hearing loss at individual frequency particularly those involved in speech reception (0.5,1,1.5, 2 KHz).
10. The higher frequencies being mainly concerned with intelligibility. Intelligibility is a measure of the accuracy (not recognition of words) to which speech can be understood.
11. Hearing aid assessment cannot be based solely on the total percentage losses.”
With respect to the deduction under s 323 of the 1998 Act the Medical Assessor said:
“In hearing loss cases the deduction is not for pre-existing conditions, but it is for hearing loss not due to noisy employment. It can usually be calculated exactly and the 10% deduction used in other compensation claims is not often needed.”
Lower frequencies
A decision of a Medical Appeal Panel is not binding precedent which a subsequent panel must follow.
While the decision in Shone is often cited in support of an argument that the losses at the lower frequencies should be included in the assessment of the noise induced hearing loss of a worker with long exposure to noise, it is no more than an example of a case in which the lower frequencies were included. In the circumstances in that case, a Medical Appeal Panel considered that it was appropriate to include the loss at the lower frequencies. The reasons given were the long exposure to and the progressive loss of hearing in the lower frequencies.
The decision in Shone does not bind later panels to include the loss at all frequencies when assessing the noise induced hearing loss of every worker who has had very long noise exposure. We are required to consider each case on its own merits.
The nature of a medical appeal is a review[10] but it is not a merits review. Before considering whether the result should be different, a panel must determine if the Medical Assessor has made a demonstrable error in the application of the Guidelines. Even if a Medical Appeal Panel may have made a different decision on the same findings, we cannot change the result unless there has been an error.
[10] Section 328(2) of the 1998 Act.
The Medical Assessor set out his reasons for failing to include the low tones. He gave the detailed reason set out at [24] above, listing the 11 matters he took into account in making the assessment. Mr Armstrong’s submissions omitted reference to those 11 matters. The Medical Assessor was required to give adequate reasons to explain his findings. As the Court of Appeal said in Vegan[11]:
“On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis (1987) 10 NSWLR 247 (at 273 274) (Mahoney JA) and (at 281–282) (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required, the reasons need not be extensive.”
[11] At [122].
In this case, the medical science is not controversial. In some cases it is appropriate to include the low tones and in others not. It is not appropriate for a panel to concentrate on the similarities with audiogram results in other decisions in conducting its review. In this case the pattern of the audiogram is not typical of noise induced hearing loss.
The MAC shows that the Medical Assessor considered appropriate matters when he exercised his clinical judgement to exclude the losses in the low tones. There is no error in his assessment.
Section 323
The authorities set out in Mr Armstrong’s submissions about the way in which s 17 of the 1987 Act operates are relevant to causation, to the fixing of a date of injury and identifying the last noisy employer. They do not apply to the question of whether there should be a deduction under s 323 of the 1998 Act.
Mr Armstrong’s submissions quoted from another Medical Appeal Panel decision in which the circumstances were quite different to his own. In Hay, the Approved Medical Specialist (AMS) made a deduction under s 323 in respect of a period of self-employment in NSW, immediately before the worker’s employment with the respondent. The Medical Appeal Panel found that it was inappropriate to make a deduction because all of the relevant employment was in NSW and the injury was deemed to have been suffered on the last date of noisy employment. The panel in Hay said that the employer’s reliance on Pereira v Siemens Limited[12] (Pereira) was misplaced in the circumstances of that case.
[12] [2015] NSWSC 1133.
In Pereira the AMS made a deduction under s 323 to reflect a period of employment in Pakistan. An Appeal Panel upheld that decision but it was overturned on an application for judicial review in the Supreme Court. Garling J held that the Appeal Panel erred because there was no factual material which necessarily supported the conclusion that Mr Pereira must have suffered an injury whilst employed in Pakistan.
The decision in Pereira does not clearly set out that the period of employment outside NSW was relevant because NSW legislation has no extraterritorial application. Section 9AA(1) of the 1987 Act provides that compensation is only payable in respect of employment that is connected with NSW.
We consider that we can take notice of the fact that any period of National Service or other military service was undertaken on behalf of the Commonwealth. Therefore, if there is evidence to support the contention that there was pre-existing hearing loss as a result of Mr Armstrong’s period of military service, a deduction under s 323 was open to the Medical Assessor because it was not a loss suffered during employment in NSW.
Garling J said that there was no factual material available in Pereira to enable a conclusion that Mr Pereira had suffered a pre-existing injury. While there was evidence that the work he did in Pakistan was noisy:
“Nowhere was there any material which allowed the Appeal Panel or the AMS, to conclude that the plaintiff had been exposed to an unacceptable noise level for a sufficient length of time, and of the kind of noise level which, on the probabilities, would have resulted in an injury.
Nowhere was there any factual material which would have enabled a conclusion about whether the plaintiff was provided with ear protection, the efficacy of that protection, the extent of time over which it was worn, and the ultimate outcome.”[13]
[13] At [100]-[101].
Garling J went on:
“Thirdly, the Appeal Panel and the AMS wholly failed to consider whether, if there was a pre-existing injury, it caused or contributed to the present whole person impairment. That is to say, because it cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current impairment, they must enquire into whether such pre-existing injury as there was, made a difference in the degree of the whole person impairment presently suffered by the plaintiff. They did not attempt to undertake this exercise.”[14]
And
“Fourthly, in seeking to assess the deductible proportion by the fixed line methodology of taking the number of years of exposure and applying it equally across the period, the Appeal Panel and the AMS have used a methodology which was unsupported by any direct evidence before them. If it was the application of expert medical knowledge or an accepted medical fact, then their reasons needed to reflect that. Nowhere in the Appeal Panel’s reasons is there any discussion at all as to why it ought be assumed that deafness occurs in equal proportions over time.
Finally, if deafness does not occur, other than by assumption, equally across time, then the Appeal Panel failed to give any consideration to whether an assessment of the deductible proportion was either costly or difficult warranting thereby the application of s 323(2) of the 1998 Act at a deduction of 10%.”[15]
[14] At [103].
[15] At [107]-[108].
Here, there is evidence in Mr Armstrong’s statement that he served with the CMF as a gunner from 1954 to 1956 and was exposed to noise from artillery and firearms during training.
Mr Armstrong saw Dr Fagan at the request of his solicitors. Dr Fagan said in his report dated 30 May 2019:
“Mr Armstrong indicated he served full-time in the Australian military for 2 years. He undertook rifle training only intermittently during this period. Overall his service was not particularly noisy and he did not notice any hearing loss for many years thereafter. Therefore, I do not believe his military service to have been injurious to his hearing and no deduction should be applied.”
Mr Armstrong saw Dr Macarthur at the request of Gosford Stone. Dr Macarthur reported on 27 April 2020 and obtained the history that Mr Armstrong suffered a perforated right tympanic membrane while on National Service in 1956 which lead to surgery on this ear in the 1990s. He obtained the history that:
“From 1954 until 1956 Mr Armstrong joined the CMF and served in National Service as a Gunner. There he was exposed to minimal noise from artillery, mortar, and firearm exposure while training infrequently for only 3 months.”
Dr Macarthur observed that Mr Armstrong’s right tympanic membrane was scarred, though intact, with decreased motility. Dr Macarthur did not make a deduction under s 323 but assessed 0% binaural hearing loss after deducting the percentage for which Mr Armstrong was previously compensated.
The Medical Assessor obtained the history that Mr Armstrong’s ruptured right tympanic membrane occurred during mortar exercises while undertaking military service. He carefully considered the nature and sources of the noise to which Mr Armstrong was exposed, taking a more detailed history than that set out in Mr Armstrong’s statement or that given to the independent medical examiners.
The Medical Assessor explained that the rupture reinforced the materiality of the noise exposure during military service. The fact that Mr Armstrong underwent surgery many years later supports that contention, though there is no medical evidence about the surgery. Dr Macarthur obtained the history that the surgery was related to the injury during National Service.
The fact that Mr Armstrong suffered a tympanic membrane rupture during military service, at the beginning of his working life provides a basis for a deduction under s 323 and shows that this case is different to Pereira. Though the Medical Assessor’s reasons are short, they are sufficient to show the path of his reasoning.
The Medical Assessor made a deduction of one-twentieth only on the basis of the length of time for which Mr Armstrong was involved in military service. The standard deduction under s 323 would have provided for a greater deduction.
We consider that it was open to the Medical Assessor to make the deduction under s 323 in the exercise of his clinical judgement and on the basis of the history that he obtained.
For these reasons, we have determined that the MAC issued on 30 March 2022 should be confirmed.
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