Bayside Council v Whyte
[2023] NSWPICMP 278
•16 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bayside Council v Whyte [2023] NSWPICMP 278 |
| APPELLANT: | Bayside Council |
| RESPONDENT: | John Morris Whyte |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Joseph Scoppa |
| MEDICAL ASSESSOR: | Henley Harrison |
| DATE OF DECISION: | 16 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal against 3% assessment for tinnitus; whether Medical Assessor (MA) gave adequate reasons; Held – applying Campbelltown City Council v Vegan, the MA was obliged to give an adequate explanation regarding competing conclusions; the MA’s explanation was adequate, and observations made as to detail required. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 January 2023 Bayside Council, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 December 2022.
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 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 27 October 2022 a delegate of the President referred this matter to a Medical Assessor for a WPI assessment of hearing loss deemed to have occurred on 6 October 2017.
The Medical Assessor took a history of bilateral gradually progressive hearing loss since about 2010 to 2012. He assessed total binaural hearing impairment of 21.1% which resulted in a finding of 11 % WPI.
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.
No re-examination by a Member of the Appeal Panel was sought.
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.
Medical Assessment Certificate
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 which have been considered by the Appeal Panel.
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 [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 issue before the Panel was confined to finding by the MA regarding tinnitus.
The MAC
In taking a history relating to the injury, the Medical Assessor said:[1]
“Tinnitus
He gave a history of constant tinnitus, like cicadas. He said the right is equal to the left. He said it interferes with his daily activities during the day because it is annoying and it affects his concentration. He said it interferes with sleep induction at night for 10 minutes to 1 hour most nights and interferes with being able to get back to sleep if he wakes during the night. He said he usually is unable to get back to sleep. He said he told Dr Fagan he had noises in the ears. He said he has had no treatment for his tinnitus. He said he has not discussed his tinnitus with his GP or a treating ENT Specialist.”
[1] Appeal papers page 25.
The Medical Assessor took a history of Mr Whyte’s prior occupational history and carried out a physical examination.
He took an audiogram, the contents of which had not been challenged. At [9] he said:
“9. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are: My medical history, my physical examination, my pure tone audiometry, the SIRA NSW workers compensation guidelines for the evaluation of permanent impairment, 1 April 2016, reissued 1.3.21, and the 1988 NAL Tables for determining the percentage loss of hearing as prescribed in the Guides and AMAS where applicable.” (As written).
At [10a] the Medical Assessor said, relevantly:[2]
“In my opinion his tinnitus does fall within the class of severe tinnitus because it interferes with activities of daily living during the day and also interferes with sleep. I have assessed his tinnitus as 3%.”
[2] Appeal papers page 28.
The Medical Assessor considered the relevant documentation before him which he listed at [10c] of his report.[3] Relevantly, he noted that Dr Paul Fagan on 14 January 2021 had made no addition for tinnitus.
[3] Appeal papers page 28.
SUBMISSIONS
The appellant employer submitted that the worker’s expert, Dr Paul Fagan, ear nose and throat specialist assessed 14% resulting from industrial deafness but made no allowance for tinnitus.
However, the employer’s medico-legal expert, Dr Howison allowed 1% for tinnitus and gave an overall assessment of 4% WPI.
The appellant employer noted that the issue raised in its s 78 notice of 28 June 2021 was whether the threshold was met in reliance on Dr Howison’s advice.
It was noted that the Medical Assessor had assessed 3% for tinnitus and given an overall assessment of 11%. It was submitted there had been an error in the assessment of tinnitus. This error was constituted in three ways:
(a) that the Medical Assessor did not adequately consider the available medical evidence;
(b) he did not provide sufficient reasons, and
(c) the assessment of 3% for tinnitus was not one that was open to him.
In support of these assertions the appellant employer noted that the guides at Chapter 9.11 provided that the assessor could add up to 5% to the work-related binaural hearing impairment for severe tinnitus. The appellant employer acknowledged that there was “limited guidance” as to how the tinnitus impairment was to be assessed, and submitted that it depended on the Medical Assessor’s clinical judgement, “taking into account the evidence before him.”
For that reason, it was argued, a Medical Assessor was required to “provide [a] detailed line of reasoning”. This was especially so, it was submitted, where the Medical Assessor assessed a different impairment from the medical evidence that was before him. In order to do that, it was submitted the Medical Assessor had to adequately consider that evidence.
The appellant employer relied on Vegan, which we have referred to above.
It was submitted that the assessment of 3% was “not reasoned with a level of adequacy that is required” where his assessment was at odds with the assessment of both medical experts relied on by the parties.
The divergence between 0%, 1% and 3% the appellant employer submitted was “not insignificant.” Whilst the Medical Assessor had referred to the other assessments, that reference was not adequate to explain why his assessment differed. The appellant employer submitted “…at its highest, the MA advised that he preferred his ‘history, examination, audiogram and assessment’.”
The appellant employer referred to Dr Fagan’s advice that “Mr Whyte reports no symptoms of tinnitus.” The appellant employer submitted that the Medical Assessor’s discussion with Mr Whyte about that comment was insufficient.
It was submitted that Mr Whyte nonetheless continued to rely on Dr Fagan’s report and did not seek a supplementary opinion. “One would have thought”, the appellant employer argued, that a supplementary report would be obtained if Dr Fagan has indeed made an error. That Mr Whyte continued to rely on Dr Fagan’s report was a factor that the Medical Assessor failed to consider in sufficient detail and thus fell into error.
The appellant employer acknowledged that Dr Howison included an allowance for tinnitus, noting that the allowance was only 1% on the history he had been given. The remarks of the Medical Assessor were consistent with that opinion, the appellant employer submitted.
Moreover, it was argued that the assessment by Dr Howison was consistent with the information given by Mr Whyte in his statement of 24 April 2022. It followed that the Medical Assessor had not given adequate reasons as to the basis of his assessment and that at its highest the assessment should have been 1% WPI.
John Morris Whyte (the respondent)
The respondent submitted that the assessment of tinnitus was provided by Chapter 9.11 of the Guides. The assessment was to be made on a Medical Assessor’s assessment, that is to say, on his clinical judgment. Mr Whyte submitted that the finding by the Medical Assessor was open to him. He correctly applied the guidelines and it was submitted that a Guideline that required the exercise of clinical judgment could not produce a demonstrable error.
The appellant employer’s argument was simply a difference of opinion and not therefore an arguable ground of appeal.
Mr Whyte referred to the reasons given by the Medical Assessor. They indicated that the Medical Assessor exercised his clinical judgment in accordance with his obligation under the Guides.
We were referred to Brown v Aqua Assets,[4] Barton v Ballina Shire Council,[5] Reid v Australian Timber Shutters Pty Ltd[6] all of which references and citations confirmed the manner in which the Medical Assessor approached his task and his assessment.
[4] [2008] NSWWCCMA 230.
[5] [2021] NSWPICMP 206.
[6] [2021] NSWWCCMA 10.
As to the argument that the Medical Assessor was required to explain his opinion in more detail where the experts on both sides differed, we were referred to Bustos v Cleaners NSW Pty Ltd (in liquidation)[7] and Kopanovski v Water and Co Limited.[8]
[7] [2019] NSWWCCMA 32).
[8] [2008] NSWWCCMA 151 at [27].
The history taken by the Medical Assessor was detailed, including a comprehensive history of Mr Whyte’s experience with tinnitus, and it was submitted that the Medical Assessor had provided adequate reasons to support his findings.
We were also referred to Moore v Secretary, Department of Education.[9]
DISCUSSION
[9] [2021] NSWPICMP 63 at [25].
There is no obligation per se for an Medical Assessor to explain any difference that he might have with the opinions of other experts in the case.[10] It is not unusual that an Medical Assessor will have a different opinion to other experts in the case which themselves would differ. Such is the case in the present appeal.
[10] See Adams J in Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
The question as underlined by Vegan and Chan is whether the explanation adequately explains the Medical Assessor’s reasoning. Chapter 9.11 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 medical specialist in this case was the Medical Assessor. The question was thus very much a matter for the Medical Assessor in a clinical situation, subject to his obligation to give adequate reasons for his findings.
The Medical Assessor considered the relevant documentation before him which he listed at [10c] of his report.[11] Relevantly, he noted that Dr Paul Fagan on 14 January 2021 had made no addition for tinnitus. This inconsistency required an explanation, as it was a situation where more than one conclusion was open and the conclusion reached had to be explained, to use the analogy in Vegan, above.
[11] Appeal papers page 28.
The Medical Assessor noted that Dr Fagan had recorded that Mr Whyte had said he had no symptoms of tinnitus, but he assessed 3% nonetheless. The explanation for the conclusion he reached was, patently enough, that the history he had recorded with Mr Whyte was that Mr Whyte had indeed told Dr Fagan that “he had noises in his ear.” Dr Fagan’s history therefore became unreliable, and it is probable that the MA gave it little weight, as indeed does the Panel.
No further explanation was needed. We note the many scenarios advanced by the appellant employer that the Medical Assessor was said to have failed to address, but he is not required, to apply Vegan again, to provide an extensive or “detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.”
The appeal is accordingly rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 December 2022 should be confirmed.
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