Berg v Gray Plantations

DETERMINATION OF APPEAL PANEL
CITATION:	Berg v Gray Plantations [2022] NSWPICMP 456
APPELLANT:	Ralph Berg
RESPONDENT:	Gray Plantations
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Henley Harrison
MEDICAL ASSESSOR:	Paul Nial
DATE OF DECISION:	16 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Industrial deafness; appellant worker alleged Medical Assessor (MA) error in excluding losses below 1500Hz with inadequate reasons; 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 4000Hz and 3000 Hz as has occurred here; consideration of the duration of occupational noise exposure and the nature of the noise exposure; the MA found these were variable over the years and intermittent and fluctuating; it was open to the MA to find that not all of the losses are compatible with noise induced hearing loss and that the losses at the lowest frequencies of 0.5 Hz and 1Hz are not compatible with noise induced hearing loss; Held – the clinical judgment of the MA is consistent with the nature and extent of the appellant’s occupational noise exposure; the MA explained that his assessment was based on the documents provided, the history given, the clinical assessment and his audiogram; when regard is had to the Medical Assessment Certificate (MAC) as whole there is no error to be found in the MA’s assessment or his reasons; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 July 2022 Mr Ralph Berg (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sylvester Valentine Fernandes, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 29 June 2022.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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.
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.
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

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.
The appellant did not request 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, for the reasons explained below, could find no error and absent error the Appeal Panel has no power to require a worker to submit to a re-examination.

EVIDENCE

Documentary evidence

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.

The MAC

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

Both parties made written submissions. They are not repeated in full, but 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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
1.the nature and extent of hearing loss suffered by a worker (s319(e))
2.the degree of permanent impairment of the worker as a result of an injury (s319(c))
3.whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d)
4.whether impairment is permanent (s319(f)
5.whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g)
·    Date of injury: 30 June 2005 (deemed)
·    Body parts/systems referred: Noise Induced Hearing Loss
·    Method of assessment: Whole Person Impairment”
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
30/06/2005 (deemed)	500	15	15	20	15	0.4	0.0
1000	25	25	30	30	2.5	0.0
1500	45	40	40	40	6.8	6.8
2000	50	45	45	45	6.3	6.3
3000	65	65	65	65	7.0	7.0
4000	70	65	65	65	6.8	6.8
29.8	26.9
TOTAL % BHI: 29.8
Less Pre-existing non-related loss(of 2.9): 26.9
Less Presbyacusis correction(of 9.0): 17.90
Add % of severe tinnitus(of 2.0): 19.9
Adjusted total % BHI: 19.9
Resultant total BHI of 19.9% = 10% whole person impairment (Table 9.1)

The worker appealed.
In summary, the appellant’s submissions on appeal were that the MA made demonstrable errors as follows:
(a)    failure to include losses below 1500Hz;
(b)    the MA recorded a history that reflected 42.5 years of noise exposure that he wrongly referred to as 37 years;
(c)    when interpreting an audiogram it is imperative to consider the history of noise exposure and the greater the exposure the greater the likelihood the lower frequencies have been affected;
(d)    a 40 year history of noise exposure warrants inclusion of the lower frequencies especially where the configuration of the audiogram is also indicative of noise induced hearing loss;
(e)    in failing to provide adequate reasoning for excluding frequencies below 1500Hz in the overall calculation of binaural hearing loss, and
(f)    failed in his duty to provide adequate reasons “by not providing any reasoning as to why the nature and duration of the appellant’s exposure to noise ie 42.5 years of noise exposure at 90-100dB and even up to 114 dB, is not ‘suitable or sufficient’ to also cause a loss at 0.5 and 1.0KhZ or why the ‘cumulative immission levels are not high enough to involve’ 05 and1.0KHz”. The same applies if a history of 37 years is accepted as correct.
In summary, the respondent employer submitted that the MA did not make a demonstrable error and the MAC should be confirmed.
The MA recorded a history as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
He states that he has been exposed to loud noise over a period of time in the workplace contributing to a gradual and progressive hearing loss
Source of hazardous steady- state, fluctuating, intermittent and impact noise at such employment(i.e. on balance of probabilities these employments have the necessary “incidents, tendencies and characteristics” so as to give rise to a real risk of a person suffering noise induced hearing loss there from): husking equipment, tractors, harvesting equipment, trucks
Note: Some relevant sourced typical noise levels for such exposures are:
Tractors at 97-114 dBA (Simpson & Deshayes (1969))
He was supplied ear protection for approximately 1.5 years when in very noisy situations.
There is no history of noisy hobbies or amusements sufficient to cause material noise exposure.
There is no history of extra-work organic solvents exposure.
There is no history of ear disease or ear surgery or significant past head injury or family history of deafness or exposure to ototoxic medication.
There is no history of military service.
·    Present treatment: Hearing aids
·    Present symptoms:
Hearing impairment: gradual, progressive and bilateral for approximately 20 years
Otalgia: denied   Vertigo: postural
Otorrhoea: denied
Tinnitus: intermittent, unmaskable, high pitched, does disturb his sleep pattern, does interfere with activities of daily living and he has not sought medical treatment specifically for the tinnitus although hearing aids if provided for a hearing loss may sometimes provide some benefit.
·    Details of any previous or subsequent accidents, injuries or condition: Nil
·    General health:
Good
·    Work history including previous work history if relevant:
At the age of fifteen, Mr. Ralph Berg commenced an apprenticeship as a tool maker for 5 years. This employment was noisy. Hearing protection was not provided. Subsequent employment information volunteered is as follows:

WORKED AT (AS)	YEARS	±40h/w¹	NOISY²	C/I³	DISTANCE⁴	PROTN⁵
ACI Plastics (tool maker)	2	yes	yes	both	< 1 m	no
Contract fitter	2	yes	yes	both	< 1 m	no
Wedge Industries (fitter/turner)	2	yes	yes	both	operating	no
Kellyville Tyre Services (mechanic/fitter)	2	yes	yes	both	operating	no
Construction work	4	yes	yes	both	operating	no
Gray Plantations (fitter/turner)	20	yes	yes	both	< 1 m	last 1.5 years

¹ hours per week The effect of occupational noise on an individual depends on, a varying type of noise, varying frequency characteristics of noise, varying intensity of noise, varying duration of noise and individual susceptibility. To accommodate these factors and as per current available empiricism (ISO 1999: 2013 Means; NAL Tables), a 40h/w ± gauge is appropriate unless individual circumstances are strikingly different.
± more or less
< Less than
² Criteria: employees within one metre of each other have to raise voice (or shout) to be heard. The criteria for noisy employment were explained to the claimant.
(Fact: At 90 dB it is possible to hear each other with voices raised and at 100 dB it is only possible to hear each other when shouting loudly. (extrapolated from Webster JC. Speech interference aspects of noise. In Noise and Audiology, ed. Lipscomb DM Baltimore: University Park Press (1978) pp 193-228; Suter A. 1986. Hearing conservation. In: Berger E, Ward W, Morrill J, Royster L (Editors).Noise and hearing conservation manual. Akron, OH: American Industrial Hygiene Association, p 7)
³ Continuous and/or Impact noise
⁴ Approximate working distance from noise source in metres
⁵ Ear protection supplied. Hearing protection will frequently have little impact on the degree of noise induced hearing loss. (Tikka, C.;Verbeek, J. H.;Kateman, E.;Morata, T. C.;Dreschler, W. A.;Ferrite, S. Interventions to prevent occupational noise-induced hearing loss Cochrane Database Syst Rev. 2017Vol 7; p CD006396)
· Social activities/ADL:
He states that he has difficulty understanding conversation in the presence of background noise, has the television turned up causing discomfort to fellow viewers and has difficulty understanding on the telephone.”

The MA conducted a physical examination and recorded as follows:
“Both tympanic membranes are intact and of normal appearance. The Rinne test is positive on both sides and the Weber test is not lateralized. Otherwise there is nil significant on otorhinolaryngological examination relevant to the hearing loss.”
An audiological examination was undertaken and the MA recorded the results in the MAC which is set out above.
The MA summarised the injury and his diagnosis and consistency of presentation as follows:
“(Key: bass: <1 KHz; midrange: 1 – 2 KHz; treble: > 2 KHz)
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
*There are many possible causes of non-occupational hearing loss. The validity of the finding of a non-occupational contribution to a hearing loss is not conditional on the identification of the medical aetiology thereof, be that identification precise or otherwise. Nor is it necessarily clinically difficult to assess that a component or all of a hearing loss (including where it may be of uncertain medical aetiology or deafness due to an unknown cause or causes) is non-occupational. This depends on the circumstances of the particular case. Also, 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. Thus, in this case, there is no necessity to explain the cause of the low tone hearing
·    consistency of presentation
Consistent with physical examination”
The MA explained that his assessment of whole person impairment was based on “the documents provided, the history given, the clinical assessment and my audiogram”.
The MA gave reasons for his assessment as follows:
“a. My opinion and assessment of whole person impairment
The frequencies below 1.5 KHz are not included in the calculation because:
1. The historical noise exposure is not ‘suitable or sufficient’ to cause a noise induced hearing loss at these frequencies because the cumulative immission levels are not high enough to involve the lower frequencies. In other words, the facts and circumstances on which this conclusion is reached, is succinctly evident from the exposure history (See noise levels above at 4).
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 1.5, 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”
The MA made comment on the other medical opinions before him as follows:
“Dr. P. Fagan
1. Dr P. Fagan obtained higher thresholds.
2. Dr P. Fagan states on p 5 of his report, ”…There is no explanation identified to account for this loss apart from noise exposure”. On this basis the loss is attributed to noise exposure by Dr P. Fagan. This assumes the improbability of any other causes (See below¹) in the presence of negative/absent observations (i.e. “no explanation identified”), to provide a positive ‘noise causation’ explanation. Such a methodology does not yield a cogent reason for causation. The truth of a proposition must be judged by the evidence for that proposition and not the lack of evidence against it.
In legal parlance this amounts to, ” If no other definite culprit is available then in the absence of further positive evidence, the suspect must be the criminal”.
This methodology also assumes (falsely) that causes are always additive.
¹As an example, the absence of a family history does not exclude genetic hearing loss – non-syndromic sensorineural autosomal recessive deafness (NSARD) is the most common form of genetic hearing loss. Seventy-five percent of genetic types of hearing loss are related to recessive conditions. Non-syndromic hearing loss is the most genetically heterogeneous trait known. See information may also be of benefit to some medical practitioners.
Dr. P. Macarthur
1. In the instant case Dr. P. Macarthur obtained low thresholds.
These observations are mentioned for the benefit of the instructing parties. They have no impact on my assessment
A templated approach is employed deliberately to avoid densely distractive narration (with the associated ambiguity) and to eliminate areas of interpretive flexibility and also to provide all the relevant information to the reader with minimal facility.
It is accepted that this methodology may not appeal to some medical practitioners who have a propensity and tendency for ad hoc-ery and ipse dixit-ery.”
When dealing with the question of a deduction, if any, for the proportion of impairment due to previous injury or pre-existing condition or abnormality, the MA found hearing loss of uncertain origin but considered it non-occupational:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
1. an excess loss of uncertain origin (non occupational) in the lower frequencies and
2. age related hearing loss
The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
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.”
The appellant complains on appeal that the MA did not adequately explain why he did not included the losses below 1.5Hz. The appellant submitted that the MA should have included the losses at low frequencies noting a history of some 40 years noise exposure.
The role of the MA is to conduct an independent assessment on the day of examination. The MA must exercise clinical expertise and judgment. It is well settled that the Appeal Panel cannot interfere because of a mere difference of opinion.
The Appeal Panel can discern no error in the assessment of the MA. His job was to assess the impairment as a result of occupational noise exposure as at the deemed date of injury referred to him being 30 June 2005. In so doing he was required to consider the nature and extent of the hearing loss including considering the nature and duration of occupational noise exposure. The Appeal Panel notes that there was occupational noise exposure spanning some 40 years. Although there has been some 40 years of noise exposure identified in the employment history, this does not mean that they caused the same amount of noise exposure or even that all of them damaged hearing. The appellant submitted that the MA took a history of noise exposure of over 40 years and over 40 hours per week at between 90dB and 100dBs and up to 114dBs. That is not the history that was recorded. That level of exposure forms part of the employment history but not all of it. Rather, the history taken was of a variety of different employments over the years which mostly involved fluctuating and intermittent exposure to noise. Each case is going to depend on its own facts. Simply using the total number of years of noise exposure to determine the extent of noise induced hearing loss is not appropriate because the nature of that exposure also needs to be taken into account. This requires the exercise of clinical judgment on the part of the MA which the MA has used here. The MA’s reasons need not be exhaustive and the Appeal Panel considers that he has adequately explained that in his clinical assessment, based on the history of the noise exposure including consideration of both the nature and extent of that noise exposure, that the frequencies below 1.5 Hz were excluded from the assessment because:
“The historical noise exposure is not ‘suitable or sufficient’ to cause a noise induced hearing loss at these frequencies because the cumulative immission levels are not high enough to involve the lower frequencies. In other words, the facts and circumstances on which this conclusion is reached, is succinctly evident from the exposure history (See noise levels above at 4). (the history)”

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 4000Hz and 3000 Hz as has occurred here. When considering not just the duration of his occupational noise exposure, but also the nature of the noise exposure which the MA found was variable over the years and intermittent and fluctuating, it was open to the MA to find that not all of the losses are compatible with noise induced hearing loss and that the losses at the lowest frequencies of 0.5 Hz and 1Hz are not compatible with noise induced hearing loss. The clinical judgment of the MA is consistent with the nature and extent of the appellant’s occupational noise exposure. The MA explained that his assessment was based on the documents provided, the history given, the clinical assessment and his audiogram. When regard is had to the MAC as whole, there is no error to be found in the MA’s assessment or his reasons.
For these reasons, the Appeal Panel can discern no error in the assessment by the MA and the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 June 2002 should be confirmed.

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Citations

Berg v Gray Plantations [2022] NSWPICMP 456

Cases Citing This Decision

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Campbelltown City Council v Vegan [2006] NSWCA 284

[2022] NSWPICMP 456

16 November 2022