Arnold v Arnold's Industrial Maintenance Pty Ltd
[2024] NSWPICMP 557
•9 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Arnold v Arnold's Industrial Maintenance Pty Ltd [2024] NSWPICMP 557 |
| APPELLANT: | Glen Arnold |
| RESPONDENT: | Arnold's Industrial Maintenance Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Robert Payten |
| MEDICAL ASSESSOR: | Thandavan Raj |
| DATE OF DECISION: | 9 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Industrial deafness; worker assessed as suffering from noise-induced binaural hearing impairment; consistent reports of worker suffering from severe tinnitus; evidence that severe tinnitus symptoms developed approximately 20 years after last noise exposure; consideration of clause 9.11 of SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 June 2024 Glen Arnold (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, who issued a Medical Assessment Certificate (MAC) 28 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
There is no dispute that Mr Arnold suffers from industrial deafness. He has, for the majority of his working life, been exposed to loud noise with various employers, largely working in maintenance. His last noisy employer was Arnold’s Industrial Maintenance Pty Limited (the respondent). He ceased employment with the respondent on 28 February 2004 (reflected as the deemed date of injury), and although he has remained working since that time, he has not been exposed to industrial noise since the date of injury.
Mr Arnold brought proceedings to the Personal Injury Commission (Commission) claiming lump sum compensation as a result of industrial deafness suffered in the employ of the respondent. The dispute concerned only the degree of permanent impairment and was referred to a Medical Assessor for assessment.
The Medical Assessor assessed the worker based on an audiogram conducted during the medical assessment. The total binaural hearing impairment due to Mr Arnold’s employment was assessed at 19.5, which was converted to a whole person impairment of 10%. This assessment, it is noted, means that Mr Arnold does not reach the relevant threshold for an entitlement to lump sum compensation.
The Medical Assessor made no allowance for severe tinnitus. The appeal is concerned with that aspect of the assessment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination as there was sufficient information contained in the MAC and the material available to the Medical Assessor, which was also made available to the Appeal Panel.
The appellant submits that if the Appeal Panel accepts Dr McSwiney’s detailed history as to tinnitus symptoms, then no re-examination need occur. No submissions are provided in circumstances where the Appeal Panel do not accept that history. In any event, the Appeal Panel are of the view that a re-examination is not necessary in circumstances where there is sufficient material available.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. As set out above, the appeal is limited to a singular issue (involving three grounds for appeal) being the assessment of severe tinnitus.
In summary, the appellant’s three grounds are that:
(a) the Medical Assessor recorded an incorrect history in relation to the length of time Mr Arnold suffered from tinnitus. This is said to be an error on the face of the record;
(b) the Medical Assessor erred in his assessment of causation in relation to the severe tinnitus suffered by the appellant. The Guidelines require the consideration of whether tinnitus is caused by a work-related injury, whereas the Medical Assessor approached the issue by asking whether tinnitus was due to employment, and
(c) the Medical Assessor failed to provide adequate reasons for not including the loading for severe tinnitus.
In reply, the respondent submits that:
(a) there is no evidence that the appellant’s tinnitus was intermittent “well before” February 2023, as asserted by the appellant. The history taken by Dr McSwiney is likely consistent with that recorded by the Medical Assessor, and in any event he has recorded the most recent and full history of tinnitus;
(b) it was reasonable for the Medical Assessor to determine that the appellant did not suffer from severe tinnitus based on the detailed history recorded in the MAC. While it was open for Drs McSwiney and Tamhane to apply an additional loading for severe tinnitus, their assessments have no relevance to that made by the Medical Assessor, and
(c) the Medical Assessor has set out detailed reasoning for his assessment and that no error is revealed.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
In Campbelltown City Council v Vegan [2006] NSWCA 284 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 appellant has divided the appeal into three grounds as set out in the summary of submissions above. The Appeal Panel’s reasons will follow that same path, noting that a close analysis of the Medical Assessor’s reasoning process is required.
Ground 1 – the length of time the workers suffered from tinnitus
The appellant submits that the Medical Assessor concluded that the appellant had only suffered from tinnitus for one year, which is demonstrably incorrect. In support of this ground the appellant refers to the report of Dr McSwiney dated 11 September 2023, based on an assessment that took place on 29 August 2023.
The Medical Assessor records the following history in relation to tinnitus:
“He started to develop tinnitus about a year ago and it has got progressively worse particularly on the left side. It irritates him although his hearing aids help and interferes with his sleep.”
Dr McSwiney, in his report records:
“Glen has had tinnitus mainly in the left ear. It was intermittent to begin with, but he says it has become worse and continuous over the past six months.”
It is noted that the appellant’s statement records the following in relation to tinnitus:
“I suffer with continuous ringing tinnitus in both my ears, especially in my left ear. find it annoying and at times it affects my concentration and thinking abilities. Because of this I worry about it impacting my current job. I notice the tinnitus more when I am in a quiet environment. I sometimes find it hard to fall asleep because of the "cicada" like sound.”
Dr Tamhane records:
“He complained of bilateral continuous of tinnitus in the ears. The tinnitus is very annoying and aggravating. There are times when it affects his concentration. The tinnitus keeps him awake at night.”
There are a number of observations that the Appeal Panel would make about these various histories of the effect of and time the appellant has been suffering from tinnitus.
Firstly, the reported experience of Mr Arnold’s tinnitus has largely been consistent. It is reported that the tinnitus irritates or bothers him and the noise is described as like a cicada. It is also consistently reported that the tinnitus affects the left ear more significantly than the right.
Secondly, only the Medical Assessor and Dr McSwiney have taken a history as to the length of time Mr Arnold has been suffering from tinnitus. That history is not supported in the statement prepared in support of this dispute.
Thirdly, when one considers the history taken by the Medical Assessor and Dr McSwiney, they are largely consistent. The Medical Assessor records development of tinnitus “about a year ago”, which, based on the date of the assessment, would be May 2023. Dr McSwiney records a history of intermittent tinnitus getting worse “over the past six months”. Based on the date of Dr McSwiney’s report, that would be February 2023. This is a difference of two months.
As the respondent submits, the Medical Assessor was entitled to rely on the history he took during the examination (see cl 1.47 of the Guidelines). It is likely that the appellant told the Medical Assessor precisely what is recorded, that is that the tinnitus started about one year ago. Absent any contemporaneous record of the precise time the appellant’s tinnitus developed, it cannot be said that a difference of two months (accepting that Dr McSwiney’s history is entirely correct) is “demonstrably incorrect”.
Finally, and most importantly, it is the Appeal Panel’s view that even if the appellant’s primary submission is accepted (i.e. that the Medical Assessor took an incorrect history of the development of tinnitus by two months) that is irrelevant to the ultimate conclusion the Medical Assessor reached and thus does not constitute a demonstrable error. The circumstances of the Medical Assessor’s consideration of the application of a loading for severe tinnitus are:
(a) Mr Arnold’s date of injury, representing the last time he was employed in an employment to which the nature of industrial deafness is due, is 28 February 2004 some 20 years before the current assessment;
(b) there is no contemporaneous record of the onset of tinnitus symptoms, which, based on the available material, began at some point in 2023, and gradually got worse, and
(c) there is no diagnosis or explanation for the development of tinnitus some 20 years after last noise exposure provided in the material before the Medical Assessor.
A difference of two months in the scheme of 20 years is irrelevant to the ultimate question the Medical Assessor was required to answer and his conclusion provided in the MAC.
Ground 2 - causation
The appellant submits that it was erroneous for the Medical Assessor to conclude that none of the tinnitus suffered by the worker was related to his work related injury. The appellant submits further that Medical Assessor, in reaching this conclusion, applied the wrong test.
Assessment of hearing is conducted in accordance with the Guidelines. The National Acoustic Laboratories Report No 118 (see Ch 9 hearing introduction) provides the procedure for calculating hearing impairment, which is the methodology adopted by the Medical Assessor reflected on page 6 of the MAC. In addition the impairment assessed under that methodology, there can be an additional allowance for severe tinnitus in accordance with cl 9.11 of the Guidelines, which provides:
“9.11 Binaural hearing impairment and severe tinnitus: Up to 5 per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury:
·after presbyacusis correction, if applicable
·before determining whole person impairment (WPI).
Assessment of severe tinnitus is based on a medical specialist’s assessment.”
The Appeal Panel would make a number of observations about this clause. The first is that the allowance is for severe tinnitus only. In present circumstances, it is consistently agreed amongst the experts that have assessed Mr Arnold (including the Medical Assessor) that he suffers from severe tinnitus.
The second is that severe tinnitus can only be added in addition to binaural hearing impairment. Although not relevant here, as the appellant suffers from that, it may be relevant in other circumstances (where a worker suffers hearing loss in only one ear, or acoustic trauma).
The third is that it is clear that the clause is not an automatic allowance where severe tinnitus is present. The clause imparts a causation test in the words “caused by a work-related injury”. Such words envision circumstances where tinnitus will arise due to a cause unrelated to a worker’s injury. It is a causation question to be answered as part of a medical assessment, “based on a medical specialists’ assessment”.
Finally, the word “may” introduces an element of discretion. In the Appeal Panel’s view this discretion is in a number of areas: to whether the tinnitus is “severe”, to the extent of that in a range of up to 5%, when it is determined to be severe, and to the causation question asked above.
On that basis, the Appeal Panel are satisfied that the Guidelines allow for the consideration of a causation question to be answered by a Medical Assessor. The role of a Medical Assessor in determining causation is limited by the statutory scheme in which they operate, but questions of causation are not foreign to medical disputes (per Emmett JA in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [110]):
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of "medical dispute". Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
The Appeal Panel agrees with the approach taken by the Medical Assessor in considering the causation question in accordance with cl 9.11. The issue on appeal is whether, in approaching that consideration, the Medical Assessor asked himself the correct question, or applied the correct test of causation. The appellant submits that the Medical Assessor considered whether employment caused the worker’s tinnitus, which is the wrong test, and he should have considered whether the tinnitus was “caused by a work related injury”, being bilateral sensori-neural deafness of mixed origin.
In order to determine whether the Medical Assessor has asked himself the correct question, a close analysis of his reasons is required. On page 2 of the MAC, the worker’s present symptoms are recorded:
“He started to develop tinnitus about a year ago and it has got progressively worse particularly on the left side. It irritates him although his hearing aids help and interferes with his sleep. In view of the description given I consider it to be severe but I do not believe that it is due to his employment because it only started a year ago and the
damage due to loud noise does not progress when the exposure to loud noise has ceased; he has not been exposed to occupational noise since the date of injury (see
below).”On page 5 of the MAC, in explaining his reasons for assessment, the Medical Assessor provides: “He does not suffer from work related severe tinnitus so I have not made an allowance for that.”
In considering the other medicolegal opinions provided to him, the Medical Assessor comments: “Both of them made an allowance for severe tinnitus despite the tinnitus having been present for only 1 year.”
The Appeal Panel accepts that the Medical Assessor has not used the precise words of cl 9.11 when considering the causation question therein, and has focussed on whether the tinnitus was work related, or caused by employment, rather than caused by the “work-related injury”. It is the Appeal Panel’s view that there is a fine, but relevant distinction between the two.
However, the Appeal Panel agrees with the conclusion reached by the Medical Assessor. A period of 20 years has elapsed since the worker ceased employment. The provisions of section 17 of the Workers Compensation Act 1987 deem the injury to have occurred on the last day Mr Arnold was employed with the respondent. The injury is deemed to have occurred “in one blow” by that provision: Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 at 256–257.
Binaural hearing impairment caused by noise exposure (boilermaker’s deafness or industrial deafness) will not always, and of necessity, lead to tinnitus. As the appellant points out, the cause of the appellant’s hearing loss is clearly multi-factorial. That does not mean that the cause of tinnitus suffered by the appellant is multi-factorial, although that may be the case. Further, a multifactorial cause does not mean that there has necessarily been a contribution from the work-related injury. In the present circumstances, the period of time between exposure to noise and the development of tinnitus is a relevant consideration. It is the Appeal Panel’s view, consistent with that expressed by the Medical Assessor, that a period of 20 years is so remote as to have no connection with the work-related injury.
It is also relevant to note that tinnitus is worse in the left ear. In industrial deafness caused by noise exposure, hearing loss should be equal bilaterally. It is the view of the Appeal Panel, based on clinical judgment and expertise, that tinnitus caused by noise exposure should reflect the equal noise damage to the hair cells of both inner ears and therefore be of similar severity in both ears. It is acknowledged that Mr Arnold reports suffering tinnitus in both ears, but it is also reported that the left is more significant. This, in the Appeal Panel’s view, lends further weight to the conclusion that there is no or an insignificant connection between the work-related injury and the tinnitus suffered by Mr Arnold. In other words, the work-related injury does not materially contribute to the tinnitus suffered by Mr Arnold.
The test of causation to be applied is one of material contribution. The Appeal Panel accepts that there can be multiple causes for loss, per ACQ Pty Ltd v Cook [2009] HCA 28, which equally applies to the question of causation in this matter. In the present circumstances, the Appeal Panel are not satisfied that the work-related injury materially contributes to the tinnitus suffered by the appellant which appeared approximately 20 years after he ceased being exposed to loud noise, and the work-related injury he suffered, which is said to have occurred “in one blow”.
The Appeal Panel does not accept the appellant’s submission that it must necessarily follow that the calculation of impairment, which attributed approximately half of the impairment to industrial deafness, means that part of the tinnitus was related to industrial deafness. Clause 9.11 of the Guidelines does not make any connection between the assessment of impairment and tinnitus. The assessment “is based on a medical specialist’s assessment”. This, in the Appeal Panel’s view, extends to the causation question.
Accordingly, whilst the Medical Assessor asked himself the wrong question by considering whether employment contributed to the tinnitus with which he suffers, the conclusion reached was the correct one, in that the work-related injury does not materially contribute to the tinnitus present on examination.
Ground 3 - reasons
The appellant submits that the Medical Assessor’s reasons permit no insight as to why he did not at least apportion the tinnitus loading, and also indicate he applied an erroneous test of causation.
The Appeal Panel have dealt with the latter submission above. The Medical Assessor, although applying the incorrect test, reached the correct conclusion in relation to causation. The Appeal Panel also notes that there is no method for apportionment of the loading for severe tinnitus. The question of causation involves only two possible answers – either the work-related injury contributes to severe tinnitus, or it does not. The discretion as to the extent of the allowance for tinnitus involves degrees in a range from 0-5%, but that discretion can not be exercised unless the fundamental question of the connection between the tinnitus and the work-related injury is answered in the positive.
In relation to the former submission, the Appeal Panel accept that the Medical Assessor’s reasons for the test of causation in relation to severe tinnitus were not extensive. However, when reading the MAC as a whole, it is clear that the reasons follow a logical path. The Medical Assessor took a history of the development of severe tinnitus, which occurred at some time in early 2023 (see ground 1 above). He considered the shape of the audiogram and made an assessment of impairment based on that. He went on to opine that the worker did not suffer from work related severe tinnitus, and when considering the other medicolegal opinions, explained that he disagreed with them as the tinnitus had only been present for one year. Reasons of Medical Assessor do not need to be extensive, but must be sufficient to enable a court to determine whether or not it involves an error of law (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43). The Medical Assessor’s reasons follow a logical path. While there was an error of law in the application of the test of causation, that has not resulted in a different outcome.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 May 2024 should be confirmed.
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