Arnold v Arnold's Industrial Maintenance Pty Ltd - [2024] NSWPICMP 557

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, 4^th ed 1 March 2021; whether severe tinnitus had been caused by a work-related injury; question of causation inherent in application of the clause; Held – no demonstrable error; Medical Assessor correct to conclude severe tinnitus was not caused by a work-related injury; Medical Assessment Certificate confirmed.

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, 4^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPICMP 557
Decision Date: 9 August 2024

CaseChat Overview and Summary

The case of Arnold v Arnold’s Industrial Maintenance Pty Ltd involved a claim for workers’ compensation by the applicant, who was assessed as suffering from noise-induced binaural hearing impairment. The applicant also claimed to experience severe tinnitus, which he argued was a consequence of his exposure to loud noises in his employment. The dispute was heard and determined by the Industrial Commission of New South Wales. The primary issue before the court was whether the severe tinnitus experienced by the applicant was caused by a work-related injury, specifically whether it was a consequence of the noise exposure during his employment. This issue was closely tied to the interpretation and application of clause 9.11 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.

The court was tasked with determining whether there was any error in the Medical Assessor’s conclusion that the applicant’s severe tinnitus was not caused by a work-related injury. The applicant argued that his severe tinnitus symptoms developed approximately 20 years after his last significant noise exposure, suggesting a work-related cause. The court examined the evidence and the application of clause 9.11, which deals with the evaluation of tinnitus as a permanent impairment. After a thorough review, the court found that there was no demonstrable error in the Medical Assessor’s conclusion. The court accepted that the Medical Assessor was correct in determining that the severe tinnitus was not caused by a work-related injury, given the temporal relationship between the noise exposure and the onset of symptoms.

Consequently, the court upheld the Medical Assessment Certificate, which confirmed the Medical Assessor’s findings. The court’s decision was based on the applicant’s inability to establish a causal link between his work-related noise exposure and the onset of his severe tinnitus symptoms. This conclusion aligned with the provisions of clause 9.11, which considers the timing and other factors in assessing the cause of tinnitus. The outcome of the case was that the applicant’s claim for compensation for severe tinnitus was dismissed, affirming the correctness of the Medical Assessment Certificate.

Orders