Barton v Ballina Shire Council

[2021] NSWPICMP 206

DETERMINATION OF APPEAL PANEL
CITATION:	Barton v Ballina Shire Council [2021] NSWPICMP 206
APPELLANT:	Michael Gordon Barton
RESPONDENT:	Ballina Shire Council
APPEAL PANEL:	Member Jane Peacock Dr Joseph Scoppa Dr Henley Harrison
DATE OF DECISION:	3 November 2021
CATCHWORDS:	WORKERS COMPENSATION- Industrial deafness; complaint on appeal that Medical Assessor (MA) did not include frequencies below 2000kHz and did not include allowance for severe tinnitus;  the MA’s approach is the same as that of the other experts whose opinions were in evidence; considering the nature and duration of his occupational noise exposure and the nature and extent of all the hearing losses at 0.5 – 4 kHz, it was open to the MA to find that the losses at 1500 Hz and below are incompatible with noise induced hearing loss; this is because industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000 Hz; thus in industrial deafness the hearing loss at 1500 Hz would be expected to be significantly less severe than the losses at 2000 Hz, 3000 Hz  and 4000 Hz, and this is not the case in the MA’s audiogram, and or in the other  audiograms obtained by the other experts; the Panel can discern no error in the MA’s approach in basing his assessment on the losses at 2000Hz to 4000Hz inclusive; the failure to include an allowance for severe tinnitus was open to the MA on the history and clinical evaluation by the MA on the day of assessment; Held - the Appeal Panel could not discern error in the assessment by the MA; 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

1. On 2 August 2021 Mr Michael Gordon Barton lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian J Williams, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 5 July 2021.

2. 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):

   ·        The assessment was made on the basis of incorrect criteria.

   ·        the MAC contains a demonstrable error.

3. 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.

4. The WorkCover Medical Assessment Guidelines 2006 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 2006.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. The appellant requested that he be re-examined by a MA member of the Appeal Panel. 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 because the Appeal Panel could not, for the reasons set out below, discern an error in the MAC. Absent error, the Appeal Panel has no power to require that the appellant be re-examined: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination. 

Medical Assessment Certificate

1. The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the MA as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·    Date of injury: 21.10.18 (deemed)

   ·    Body parts/systems referred:  Hearing Loss

   ·    Method of Assessment:   Whole Person Impairment”

4. The MA issued a MAC certifying as follows:

Injury deemed to have happened on:	Frequency Hz	Left dB HL Air        Bone		Right dB HL Air          Bone		Total % BHI	Occupational % BHI
21.10.2018	500	25	20	25	25	1.4	0.0
1000	50	50	50	45	12.1	0.0
1500	60	60	55	50	11.3	0.0
2000	60	60	55	55	8.5	8.5
3000	60	55	55	55	5.6	5.6
4000	60	65	55	55	5.3	5.3
6000	70	85
8000	90	95
TOTAL % BHI: 44.2%
Less Pre-existing  non-related loss: 24.8%
Less Presbyacusis correction: 0.0%
Add % of severe tinnitus: 0.0%
Adjusted total % BHI: 19.4%
Resultant total BHI of 19.4%  =  10% whole person impairment (Table 9.1)

1. The worker appealed.

2. In summary, the appellant’s submissions on appeal were as follows:

   (a)    copy of audiogram not attached to the MAC, only a copy of the MA’s calculations;

   (b)    the MA only used the frequencies from 2kHz onwards and excluded the lower frequencies, and

   (c)    the MA failed to include an allowance for severe tinnitus.

3. In summary, the respondent submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The MA took a history which is broadly consistent with the other evidence before him, conducted an audiogram and explained his assessment as follows:

   “Mr Barton has a history of bilateral hearing loss and bilateral tinnitus.  He gave a history of occupational noise exposure as described above.  The above medical history demonstrates no other competing medical cause for his hearing loss.  Physical examination and pure tone audiometry indicate a bilateral sensorineural hearing loss with flat profile at 1.5-4kHz inclusive.  The responses I obtained upon pure tone audiometry are repeatable on ascending and descending threshold measurement and I considered them to represent accurate auditory thresholds.  The configuration of his sensorineural hearing loss is not one wholly caused by his occupational noise exposure as described above. 

   Therefore considering his medical history and physical examination including pure tone audiometry, I formed the opinion that his sensorineural hearing loss is caused by occupational noise exposure.

   Therefore considering his medical history and medical examination including pure tone audiometry, I formed the opinion that his sensorineural hearing loss at 2-4kHz inclusive is caused by occupational noise exposure, and his hearing losses below 2kHz are not caused by his occupational noise exposure.  The nature and extent of the hearing losses below 2kHz are not due to his occupational noise exposure.  I note that
   Dr Payten’s report of 21.11.18 and Dr Macarthur’s report of 25.8.19 both assessed the losses at 2-4kHz inclusive as due to occupational noise induced hearing loss. 

   In my opinion his tinnitus does not fall within the class of severe tinnitus because it does not interfere with activities of daily living.  I have assessed his tinnitus as 0%.

   My audiogram in tabular form

Injury deemed to have happened on:	Frequency Hz	Left dB HL Air         Bone		Right dB HL Air            Bone		Total % BHI	Occupational % BHI
21.10.2018	500	25	20	25	25	1.4	0.0
1000	50	50	50	45	12.1	0.0
1500	60	60	55	50	11.3	0.0
2000	60	60	55	55	8.5	8.5
3000	60	55	55	55	5.6	5.6
4000	60	65	55	55	5.3	5.3
6000	70	85
8000	90	95
TOTAL % BHI: 44.2%
Less Pre-existing  non-related loss: 24.8%
Less Presbyacusis correction: 0.0%
Add % of severe tinnitus: 0.0%
Adjusted total % BHI: 19.4%
Resultant total BHI of 19.4%  =  10% whole person impairment (Table 9.1)

1. The appellant complained about the failure of the MA to attach his audiogram. The fact that the MA recorded the results of the audiogram in tabular form does not mean he has erred or made an assessment on the basis of incorrect criteria.

2. The MA had regard to the other evidence before him and made brief comments as follows:

   “Report by Dr P  Macarthur 2.7.2018
   Comment
   I have read and considered this report.  I prefer my history, examination, audiogram and assessment.

   Dr Macarthur assessed 22%WPI due to industrial deafness.  Dr Macarthur made no addition for severe tinnitus.  Dr Macarthur assessed frequencies of 0.5-4kHz.

   Report by Dr R Payten 28.10.2014
   Comment
   I have read and considered this report.  I prefer my history, examination, audiogram and assessment.

   Dr Payten assessed 8%WPI due to industrial deafness.  Dr Payten made no addition for severe tinnitus.   Dr Payten assessed 2-4kHz inclusive.  Dr Payten’s audiogram had a relatively flat profile from 1.5-4kHz.

   Supplementary report by Dr R Payten 21.11.18
   Comment
   I have read and considered this report.

   Dr Payten assessed 8%WPI due to industrial deafness.   Dr Payten assessed the frequencies 2-4kHz inclusive.

   Dr Payten assessed further WPI as 0%WPI.

   Statement by Mr Barton 24.6.20
   Comment
   I have read and considered this statement.

   Report by Dr P Macarthur 25.8.19
   Comment
   I have read and considered this report.  I prefer my history, examination, audiogram and assessment.

   Dr Macarthur assessed 12%WPI due to industrial deafness.   Dr Macarthur made no addition for severe tinnitus. Dr Macarthur assessed 2-4kHz inclusive.”

1. The MA has clearly explained why his has excluded the frequencies below 2Hz. This is consistent with the independent medical experts (IMEs) reports of both Dr MacArthur dated 25 August 2019 who was qualified on behalf of the appellant and Dr Payton who assessed
   2-4kHz who was qualified on behalf of the respondent.

2. To assess impairment from noise induced hearing loss, the MA took into account the losses at 2000 kHz to 4000 kHz inclusive. That is, he excluded the losses at 1500Hz and below. The MA’s approach is the same as that of the other experts whose opinions are in evidence. The Panel notes that in this matter, considering the nature and duration of his occupational noise exposure and the nature and extent of all the hearing losses at 0.5 – 4kHz, it was open to the MA to find that the losses at 1500 Hz and below are incompatible with noise induced hearing loss. This is because industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000 kHz. Thus in industrial deafness the hearing loss at 1500 kHz would be expected to be significantly less severe than the losses at 2000 Hz, 3000 kHz and 4000 kHz, and this is not the case in the MA’s audiogram, and or in the other audiograms obtained by the other experts. The panel can discern no error in the MA’s approach in basing his assessment on the losses at 2000 kHz to 4000 kHz inclusive.

3. The appellant also submitted that severe tinnitus should have been assessed. The MA is entitled to rely on his clinical examination including history taking on the day of assessment and to exercise his clinical judgment on the day of assessment. On his history taking the tinnitus did not interfere with activities of daily living and the Appeal Panel can discern no error in the failure to include an allowance for serve tinnitus. The appeal panel notes that neither Dr MacArthur the IME qualified on behalf of the appellant nor Dr Payten the IME qualified on behalf of the respondent made an allowance for severe tinnitus.

4. For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2021 should be confirmed.