Blair v Wyred Pty Ltd
[2022] NSWPICMP 526
•21 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blair v Wyred Pty Ltd [2022] NSWPICMP 526 |
| APPELLANT: | Patrick Blair |
| RESPONDENT: | Wyred Pty Limited |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Robert Payten |
| MEDICAL ASSESSOR: | Henley Harrison |
| DATE OF DECISION: | 21 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Worker alleges error by the Medical Assessor (MA) in making deductions from binaural hearing loss for a pre-existing condition caused by occupational noise in South Africa pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); and for noise exposure in self-employment in New South Wales (NSW) before and after the notional date of injury; worker argues that the language of section 17 of the Workers Compensation Act 1987 did not permit any deduction from current impairment for a pre-existing condition or for hearing loss caused by self-employment; respondent accepted that the MA erred in making a deduction for self-employment after the notional date of injury; it submitted that a deduction should be made of 1/10th pursuant to section 323(2) of the 1998 Act; Held – Panel accepted that a 1/10th deduction should be made to reflect appellant’s noise exposure in South Africa; unnecessary to determine whether a deduction could also be made for noise exposure in self-employment in NSW Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 August 2022 Patrick Blair (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Thandavan B Raj, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
27 July 2022.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, 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant emigrated from South Africa to Australia in 1988. Since that time, he has operated the business of a boilermaker and pipe fitter as a sole trader. On three occasions, however, he has been employed to perform the work of a boilermaker and pipe fitter. It is common ground that during both his self-employment and employment, the appellant was exposed to industrial noise on construction sites. By his evidentiary statement he says that he was unable to speak to persons on these sites at a distance of 1 m without raising his voice.
The appellant’s employment in Australia was as follows:
· Pelbar & Venro Construction between 1988 and 1998;
· Fondwood Pty Ltd between 1998 and 2003, and
· Wyred Pty Limited (the respondent) between 18 September 2013 and
31 March 2014.The appellant had undertaken a boilermaker’s apprenticeship in South Africa between 1969 and 1973. His subsequent employment history in that country is not entirely clear. According to his statement, he worked as a boilermaker in South Africa between 1974 and 1981. Thereafter he was employed as a maintenance engineer until he migrated to Australia. During this latter employment he was only exposed to noise “when entering the workplace”.
On 7 February 2020, the appellant saw Dr Peter Corlette, an ear nose and throat surgeon, at the request of his solicitor. By a report of 10 March 2020, Dr Corlette expressed the opinion that the appellant’s last noisy employer was Wyred Pty Limited. After adjustments for tinnitus and presbycusis, he found that the appellant suffered 31.3% binaural hearing loss. This converted to 16% whole person impairment (WPI). He made no deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
On 20 May 2020, the appellant saw Dr Peter Winkler, an ear nose and throat surgeon, at the request of the respondent’s insurer. Dr Winkler agreed with Dr Corlette that, as the applicant had been exposed to occupational noise for a period of 51 years, all losses between 500Hz and 4000Hz could be attributed to the effect of occupational noise exposure. He assessed total binaural hearing impairment as 28.1% from which he made a deduction of 10% pursuant to s 323(2) of the 1998 Act to reflect the effect of occupational noise exposure in South Africa.
Dr Winkler also adjusted the appellant’s binaural hearing loss to reflect his self-employment in NSW which he characterised as “17 years noise exposure after ceasing employment”. He continued:
“The duration of Mr Blair’s employment in occupational noise in NSW was 15 years. His total Binaural Hearing impairment which occurred over 32 years in Australia is 25.3%. The amount of loss that is attributed to his last noisy employer (Fondwood Pty Ltd) is 15/32 x 25.3% = 11.9%. This is equivalent to whole person impairment of 6%.”
The difference of opinion as to WPI between Dr Corlette and Dr Winkler gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. A delegate of the President referred the dispute to Medical Assessor Raj for assessment. It is from his opinion that the appellant brings this appeal.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a re-examination of the appellant. While there is confusion in the evidence which addresses the nature of the appellant’s employment in South Africa, the panel concluded that it was unlikely that a further examination of the appellant would assist in establishing a clearer history of the appellant’s exposure to noise more than 30 years ago.
For reasons that are not explained the respondent did not lodge a Notice of Opposition to the appeal. On 20 September 2022, the Personal Injury Commission (the Commission) wrote to the respondent enquiring as to whether they would lodge a notice of opposition. It did not receive a response.
As the appellant’s industrial history included lengthy periods of self-employment and as his submissions referred to several recent cases from medical appeal panels, the panel sought submissions from the respondent as to how it should address the periods of self-employment before and after the appellant’s deemed date of injury on 31 March 2014. The appellant was given the opportunity to reply to these submissions.
These submissions have been received and will be addressed below.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA 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 MA which 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. In summary, the appellant submits that, once a worker establishes an injury within s 17 of the Workers Compensation Act 1987 (1987 Act), the entirety of his noise induced hearing loss is deemed to have happened at that time. There is no statutory basis to make a deduction for any part of the hearing loss caused by exposure to noise outside the appellant’s employment whether or not that exposure took place in NSW.
The appellant refers to the decision of the High Court of Australia in Commissioner of Railways v Bain[1] and of the Medical Appeal Panel (MAP) in Curran v Linfox Armaguard Pty Ltd.[2] He continues:
“The result of the above authorities is that s 17 does not permit an enquiry into how much noise induced hearing loss was caused by employment with the respondent compared with any other employment, regardless of when or where that employment occurred. The entirety of the loss is deemed to have occurred on the date determined by s 17 and the employer who last employed the worker in noisy employment in NSW is liable to pay compensation for the entirety of the loss.
There is no legal basis in the legislation for making a deduction for the appellant’s period of self-employment which post-dates the deemed date of injury. The fact that the MA made this deduction in any event is in contravention of the law and is an error on his part. The MA has misapplied s 17 and has misapplied s 323.”
[1] (1965) 112 CLR 246.
[2] [2021] NSWPICMP 76 (24 May 2021) (Curran).
The appellant also submitted that s 323 does not provide a basis for making a deduction for the effects of noise exposure on hearing loss during self-employment before the deemed date of injury. In support of this submission the appellant referred to the decision of the MAP in Roderick Hay v Stanton Family Trust (t/as Lakeside Leisure Village)[3].
[3] Matter No. M1-6422/20 (unreported).
The appellant also contends that there were a number of specific errors in the way in which the MA applied s 323. His statement that a one tenth deduction was not “fair and reasonable” was plainly wrong, as such words do not appear in the text of s 323. He also submitted that there was “no evidence” before the MA to permit such a deduction to be made. He emphasised, however, that his primary argument was that it was “impermissible as a matter of law” to make any deduction at all from the assessed binaural hearing loss pursuant to
s 323.In respect of the appellant’s self-employment in South Africa, the appellant referred to the reasoning of Garling J in Pereira v Siemens Ltd[4]. He submitted that the Judge found two errors in the determination of the MAP in that case. The first was to:
“exclude the hearing loss assumed to have occurred as a result from [sic] noise exposure outside of New South Wales from the hearing loss deemed to have occurred on the deemed date. The correct approach is that all of the loss of the requisite type is deemed to have occurred at one time. Consequently, there is no pre-existing condition.”
[4] [2015] NSWSC 113 (Pereira).
Secondly, the MAP in Pereira erred in assuming that there was a pre-existing condition in the absence of precise evidence to establish that fact.
Relying on the principles set out in Pereira, the appellant argued that there was no audiological evidence which might assist in assessing the appellant’s hearing loss in 1998. Secondly, the MA had recorded that the appellant’s hearing loss had commenced in 1997 i.e. many years after he arrived in Australia. Thirdly, the appellant stated in his written evidence that his hearing loss was normal when he arrived in Australia.
Thus there was no factual basis to make a deduction in respect of the period of employment in South Africa. The MA had merely made an assumption as to his hearing loss during that time or, alternatively, engaged in “speculation and hypothesis”. In support of this contention, the appellant referred to the decision of the MAP in Nelden Pty Ltd t/as Monaro Gates v Watt[5]. In Monaro the appeal panel noted that not only must there be evidence that there was a pre-existing condition of industrial deafness but that there must be evidence that it contributes to the current impairment.
[5] [2020] NSWWCCMA 78 (Monaro).
In the alternative, the appellant submitted that if the panel took the view that a pre-existing condition was established the deduction should be limited to 10% or one tenth pursuant to s 323(2) for the same reasons it utilised for the argument that there should be no deduction. Finally, the appellant submitted that the MAP should be revoked and a new MAC issued for either 13 or 12% WPI.
By its written submissions the respondent conceded that there was no proper basis for a deduction to be made in respect of noise induced hearing loss which post-dated the deemed date of injury. While the panel doubts that this proposition has universal application, in the circumstances of this case it does not need to consider the impact of industrial noise exposure after 2014 on the appellant’s loss of hearing.
While the respondent accepted the reasoning of the MAP in Curran, it submitted that Hay should not be followed. It submitted that Pereira did not:
“directly consider whether s 17 allowed a s323 deduction to be made in respect of a prior period of employment not covered by the NSW Workers Compensation scheme.”
Secondly, the respondent argued that “self-employment” is not employment to which s 17 applies. After referring to the reasoning of the Court of Appeal in A & G Engineering v Civitarese[6] and Lennon v TNT Australia Pty Ltd[7] it submitted that compensation is only payable for injuries sustained while the worker is employed in NSW. It continues:
“Self-employment is not employment to which the NSW Acts apply, because injuries sustained in self-employment are not compensable under the Act.”
[6] (1996) 41 NSWLR 41 (Civitarese).
[7] (2013) 84 NSWLR 161 (Lennon).
In respect of disease injuries it submits that the language of s 17 does not mean that an injury must reflect the “total of all hearing loss” caused by a worker’s exposure to noise irrespective of whether the exposure occurred outside or in the course of his employment. Section17 applies only to “compensable employment”. The panel assumes that the respondent intends to convey that the deeming provision in s 17 only operates on industrial deafness attributable to employment.
In respect of the application of Ozcan v Macarthur Disability Services Ltd[8] the appellant submitted that it had no application to the circumstances of this case. In the instant case there is “only one compensable injury under the NSW legislation, deemed to have occurred on 31 March 2014”.
[8] [2021] NSWCA 56.
In conclusion, the respondent concedes that Medical Assessor Raj made a demonstrable error. It submits that a s 323 deduction should be made in respect of “pre-existing hearing loss condition attributable to noisy self-employment prior to the deemed date of injury”. It argues that there is sufficient evidence to conclude a pre-existing injury existed and to make a 1/10th deduction pursuant to s 323(2) in respect of that condition.
By its submissions in reply, the appellant noted that the respondent accepted that there could be no deduction pursuant to s 323 for exposure to noise subsequent to the date of injury. He reiterates that the text of s 17 does not permit a deduction for any hearing loss that is deemed to have occurred due to a gradual process. He argues that:
“The respondent’s submission that the deeming nature of s 17 applies only to ‘compensable employment’ is a misunderstanding of the law and is essentially reading words into s 17 which do not exist.”
The appellant also refers to a recent decision of a MAP in Watt v PDA Holdings Pty Ltd[9] where it was held that it was not permissible to make an s 323 deduction for a period of noisy self-employment which predated the deemed date of injury.
[9] [2022] NSWPICMP 453
Finally, the appellant submitted that the reasoning in Ozcan did have application to the present case. He continued:
“the Appellant’s injury is a hearing loss of gradual process. It is an injury that is the result of the cumulative effect of trauma on the cochlear as a result of exposure to excessive noise over a period of time.”
Following Ozcan the appellant asserts that the entirety of the appellant’s hearing loss occurred as it were in one blow on 31 March 2014.
LEGISLATION
Section 17 of the 1987 Act insofar as it is relevant is as follows:
“If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a) for the purposes of this Act, the injury shall be deemed to have happened—
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due--at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury--on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c) compensation is payable by—(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury--that employer, or(ii) where the worker was not so employed--the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period”
Section 68B(4) of the 1987 Act which deals with deductions for previous injuries and pre-existing conditions is as follows:
“When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following--
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker's employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a),
‘previous relevant employment’ is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).”
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[10]. The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in his application.
[10] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan[11], 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.
[11] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[12]. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[12] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak[13] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[13] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd[14].
[14] [2014] NSWSC 1344 (26 September 2014).
While the respondent raises a number of legal issues in its submissions, it accepts that the MA erred in making a deduction in respect of the appellant’s self-employment post-dating the deemed date of injury. It argues that there should be a deduction of 10% in respect of a pre-existing condition pursuant to s 323. It does not press the approach of its qualified ear nose and throat surgeon, who reduced the appellant’s binaural hearing loss pro rata to reflect the fact that the appellant was self-employed for more than half the time that he was exposed to industrial noise in NSW.
The panel accepts the respondent’s submission that the appellant suffered a pre-existing condition as a result of his employment in South Africa and that it is appropriate in the circumstances of the case to make a deduction of 1/10th pursuant to s 323(2) for that pre-existing condition. It is quite clear from the appellant’s statement that between 1969 and 1981 he was exposed to noise in his employment in South Africa associated with the work of a boilermaker. He states that he was exposed to noise from hammers, grinders, steel cutting machines, oxywelders, and general worksite related noise five to six days per week, 8 to 12 hours a day during that period. There can be no doubt that this level of noise exposure caused noise induced hearing loss.
It is also the case that the rate of hearing loss due to chronic noise exposure is greatest during the first 10 to 15 years of exposure. In those circumstances, it is probable that the appellant’s noise exposure during this period caused noise induced hearing loss that exceeds an assessment made on a pro rata basis.
Nonetheless, in view of the absence of any audiological evidence, the precise impact on the appellant’s hearing loss of this work is difficult to determine. Although it may understate the impact of the work in South Africa on the appellant’s current loss, the panel concludes that it is appropriate to make a deduction of 1/10th in accordance with s 323(2) of the 1998 Act. The panel notes that this is in accordance with the concession made in the employer’s submissions.
In the opinion of the panel, the appellant’s argument that the language of s 17 of the 1987 Act does not permit a deduction to be made pursuant to s 323 for a pre-existing condition caused by exposure to occupational noise outside NSW is erroneous. Section 68B(4) of the 1987 Act, which specifically deals with deductions which can be made for previous injuries and pre-existing conditions in industrial deafness cases, plainly contemplates that a deduction can be made.
Section 68B prohibits the making of a deduction for the proportion of the worker’s impairment that is due to previous employment by an employer who may be liable to the worker under s 17 or may be so liable if the requirement to contribute were not limited by the Act. The work performed by the appellant in South Africa is not previous relevant employment for the purposes of s 68B(4), as the appellant’s employers in that country are patently not liable to contribute to compensation for his impairment due to industrial deafness. A pre-existing condition caused by that work is not immune from the operation of s323.There is, therefore, no reason why a deduction should not be made pursuant to s 323 provided it can be justified by the evidence.
The respondent’s concession in respect of the quantum of the deductible proportion pursuant to s 323 makes it unnecessary for the panel to address the issue of whether hearing loss caused by self-employment in NSW can ever give rise to a deduction either pursuant to s323 or by reason of it not being due to occupational noise exposure. The reasoning in Curran, Hay, and White suggests that this is not possible as a matter of law. None of the cases, however, state that it is impermissible to make a deduction for a pre-existing condition caused by employment or self-employment outside NSW.
The total binaural hearing loss found by the MA was 26.7 %. When a deduction is made of 1/10th to reflect the findings of the panel in respect of a pre-existing condition the appellant has 24.03 % binaural hearing loss which converts to 12% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 July 2022 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W3353/21 |
Applicant: | Patrick Blair |
Respondent: | Wyred Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Thandavan B Raj and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - calculation of whole person impairment (WPI) for industrial deafness as set out in the Table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-
| Notional date of injury | Frequency Hz | Left dB HL Air Bone | Right dB HL | Total % BHI | Occupational % BHI | ||
| Air | Bone | ||||||
| 31/3/2014 | 500 | 25 | 25 | 25 | 25 | 1.4 | 1.4 |
| 1000 | 35 | 35 | 35 | 35 | 5.7 | 5.7 | |
| 1500 | 40 | 40 | 45 | 40 | 6.8 | 6.8 | |
| 2000 | 45 | 45 | 45 | 45 | 6.1 | 6.1 | |
| 3000 | 60 | 55 | 55 | 55 | 5.6 | 5.6 | |
| 4000 | 60 | 60 | 60 | 60 | 6.0 | 6.0 | |
| 31.6 | 31.6 | ||||||
| TOTAL 31.6% BHI: = 16% WPI | |||||||
| Less Presbycusis correction: 4.9% BHI | |||||||
| Add % of severe tinnitus: 0% | |||||||
| Adjusted total % BHI: 26.7 % BHI Less 1/10th pursuant to s323(2): 24.03 | |||||||
| Resultant total BHI of 24.03 % = 12% whole person impairment (Table 9.1) | |||||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent
Impairment for injuries received after 1 January 2002
11
0