Bodiroza v Alpha & Omega Bricklaying Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Bodiroza v Alpha & Omega Bricklaying Pty Ltd [2022] NSWPICMP 483
APPELLANT:	Milorad Bodiroza
RESPONDENT:	Alpha & Omega Bricklaying Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Joseph Scoppa
DATE OF DECISION:	29 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appellant assessed for whole person impairment (WPI) resulting from injury of hearing loss; MA made deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) of 70% for proportion of WPI due to hearing loss that occurred when appellant was exposed to noise in (1) employment in Yugoslavia prior to his employment with the respondent, (2) when previously self-employed, and (3) when self-employed subsequent to his employment with respondent; Appeal Panel held MA erred by making a deduction under section 323 for post-employment noise, and post-employment noise was not, in any event, such that it would have contributed to appellant’s hearing loss; Held – Appeal Panel held that there was damage to appellant’s cochlea from exposure to noise prior to commencing employment to which section 17 of the 1998 Act related, and that damage contributes to appellant’s present hearing impairment, but the extent of the contribution was too difficult to determine so the deduction to be made under s323(1) of the 1998 Act in accordance with s323(2) of the 1998 Act was 10%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 August 2022 Milorad Bodiroza, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Thandavan Raj, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 August 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,
· 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).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by Alpha & Omega Bricklaying Pty Ltd, the respondent, as a bricklayer between 2002 and 31 March 2011. The appellant was exposed to hazardous noise during that employment from brick saws and mixers and noise generally associated with a construction site. In a statement he signed on 7 July 2021 the appellant said that hearing protection was provided to him and “worn when safe to do so”. The appellant said that he was exposed to noise for several hours a day and that he worked five days a week.
The appellant was also exposed to hazardous noise prior to his commencing his employment with the respondent. This occurred in Yugoslavia between 1963 and 1979 where he worked as a bricklayer, and for a period of 18 months whilst he served in the Yugoslav Army during which he was exposed to rifle sound during training exercise a few times a year. It also occurred after he arrived in Australia when he worked in an open cut mine for around two years and was then self-employed as a bricklayer in New South Wales between 1979 and 2000.
The appellant said in his statement that subsequent to his ceasing work with the respondent he was a self-employed bricklayer until 2012. He said that he was also exposed to noise from mixers and brick saws and to noise generally associated with a construction site. He worked five days a week, eight hours a day. He said he was provided with hearing protection and wore it. He said that he was exposed to loud noise in this self-employment for one to two hours a day.
The appellant’s solicitors arranged for the appellant to be examined on 3 November 2020 by Dr Paul Fagan to assess the appellant’s percentage loss of hearing due to industrial deafness and to provide an opinion on whether hearing aids were reasonably necessary as treatment for industrial deafness. In a report dated 6 November 2020 to the appellant’s solicitors, Dr Fagan advised that he had assessed the appellant had 35% whole person impairment (WPI) as a result of employment in New South Wales. Dr Fagan said that he did not believe there should be a deduction under s 323 of the 1998 Act for the appellant’s exposure to noise whilst serving in the Yugoslav Army because the appellant “did not notice any hearing loss after his service for many years thereafter”. Dr Fagan did not consider whether the appellant had an existing condition or abnormality with respect to his hearing organs prior to the appellant commencing employment to which s 17 of the Workers Compensation Act 1987 (the 1997 Act) applied from factors such as, for example, his self-employment as a bricklayer in Yugoslavia, and hence Dr Fagan did not consider whether there should be a deduction made under s 323 for any such pre-existing condition, if it existed. Further, Dr Fagan did not consider whether any portion of the appellant’s hearing loss due to hazardous noise occurred after the appellant ceased employment with the respondent and worked for himself as a bricklayer.
On 15 December 2020 the appellant’s solicitors wrote to the respondent’s insurer notifying the insurer that the appellant claimed compensation of $71,500 from the respondent pursuant to s 66 of the 1987 Act for 35% WPI and also claimed compensation pursuant to s 60 of the 1987 Act for the cost of hearing aids. The appellant’s solicitors provided the insurer with a copy of Dr Fagan’s report dated 6 November 2020.
The insurer then arranged for the appellant to be examined on 10 February 2021 by Dr Peter Winkler, an ear, nose and throat surgeon. Dr Winkler assessed the appellant had a total binaural occupational hearing impairment of 22.7%. Dr Winkler considered that there should be a deduction under s 323 of the 1998 Act for the “pre-existing noise exposure in the Yugoslav Army and bricklaying in Yugoslavia”. Dr Winkler noted that when that was done the result of 20.4% was achieved, which correlated with 10% WPI. Dr Winkler advised the insurer of that in a report dated 10 February 2021.
On 28 February 2021 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it would not be acceding to his claim for compensation under s 66 of the 1987 Act because his injury of “conductive and sensorineural hearing loss” did not result in more than 10% permanent impairment as required by s 66(1) of the 1987 Act in order for him to be entitled to compensation for permanent impairment. The insurer provided the appellant with a copy of Dr Winkler’s report of 10 February 2021. The insurer observed that Dr Winkler had assessed the appellant’s permanent impairment to be 10% WPI.
Thereupon, the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his disputed claim for compensation under s 66 for permanent impairment resulting from his injury of hearing loss.
A delegate of the President then referred to Medical Assessor Raj the medical dispute between the parties that was described in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
·the nature and extent of hearing loss suffered by a worker (s319(e))
·the degree of permanent impairment of the worker as a result of an injury (s319(c))
·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))
·whether impairment is permanent (s319(f))
·whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury : 31 March 2011 - deemed
Body part/s referred: Hearing loss
Method of assessment: Whole person impairment”
As mentioned above, Medical Assessor Raj issued the MAC on 3 August 2022. In that he certified that the appellant had 6% WPI from his injury of hearing loss deemed to have happened on 31 March 2011. The Medical Assessor’s explanation for his assessment and how he computed the appellant’s permanent impairment is detailed below under the heading Medical Assessment Certificate.

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further examination. This is because the material before the Appeal Panel is sufficient to determine the Appeal.

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

Medical Assessor Raj examined the appellant on 28 July 2022. The history the Medical Assessor obtained with respect to the appellant’s exposure to noise was that the appellant worked:
(a) as a bricklayer in Yugoslavia for six years before arriving in Australia in 1970;
(b)     in an open cut mine for two years where he was exposed to the noise of mining machines and where the appellant did not wear hearing protection;
(c)     in self-employment as a bricklayer between 1975 and 2002;
(d)     for the respondent as a bricklayer between 2002 and early 2011, and
(e)     in self-employment as bricklayer for 12 months after he ceased his employment with the respondent.
The Medical Assessor noted that the appellant’s exposure to noise when working as a brick layer was mainly from construction sites including noisy jackhammers, grinders, carpentry tools and large plant machinery. The Medical Assessor noted that the appellant wore hearing protection from 2000 “whenever possible”.
The Medical Assessor noted that the appellant had also worked in a blood bank for three years without noise exposure.
The Medical Assessor tallied that the appellant’s total noise exposure was “just short of 40 years”. Based on the history the Medical Assessor obtained, the Appeal Panel observes that the appellant’s exposure to hazardous noise would have been 45 years of noise, being six years in Yugoslavia, two years when working in a mine when initially in Australia, then 27 years in self-employment, then nine years when employed by the respondent and then a further year when self-employed after he ceased employment with the respondent. Nothing however hinges on this discrepancy and the Appeal Panel merely notes it for completeness.
The Medical Assessor obtained audiometric measurements of the appellant’s hearing at frequencies between 250 and 8,000Hz. He plotted the results in an audiogram that he attached to the MAC. He also tabulated the results for the frequencies between 500 and 4,000Hz in “Table 4” attached to the MAC.
The Medical Assessor said that the appellant’s noise exposure of fewer than 40 years was insufficient to effect the appellant’s hearing at lower frequencies at 500 to 1,000Hz and that the appellant’s losses at that range were greater than they expected in industrial deafness. The Medical Assessor did not include the appellant’s losses in that range when assessing the appellant’s WPI due to his injury of industrial deafness deemed to have happened on 31 March 2011.
The Medical Assessor considered that the appellant’s hearing loss at the frequencies of 1500 – 4,000Hz was due to noise. Based on that, the Medical Assessor calculated that the appellant had 63.4% binaural hearing impairment due to noise which equates to 32% WPI. In terms of whether a deduction ought to be made under s 323(1) of the 1998 Act for any proportion of the appellant’s WPI that was due to a previous injury or a pre-existing condition or abnormality the Medical Assessor said the following:
“6.4 Twenty-eight of the forty years of noise exposure was when he was self-employed. It is, therefore, reasonable to say much of his hearing loss occurred during his self-employment. This is particularly so since the cochlea damage in the early years is much more than in the later years when Alfa and Omega employed him. The standard 10% 323 deduction does not reflect the quantum of such cochlea damage. It is more reasonable to apply a pro-rata deduction.
6.5 The other matter considered was whether a deduction should initially apply for other pathology. He is seventy-five years old, and much of the other pathology would be related to his age. Thus, in my opinion, other than presbycusis deduction, no other deduction is required for other pathology. His service in the Yugoslav Army using weapons on two occasions is not a significant event and does warrant further consideration.”
The Medical Assessor noted that the appellant had bilateral tinnitus that was particularly loud at night and caused the appellant issues falling asleep. The Medical Assessor noted that during the day the appellant’s hearing aids helped mute his tinnitus. The Medical Assessor assessed the appellant had 2% WPI due to tinnitus.
The Medical Assessor, after making a correction for presbycusis and adding what he had assessed the appellant’s impairment to be due to tinnitus, calculated the appellant had “an adjusted total” of 37.9% binaural hearing impairment due to noise. The Medical Assessor observed that when the deduction of 70% he considered should be made under s 323 for the appellant’s hearing loss that occurred during the appellant’s self-employment as a bricklayer, the appellant’s binaural hearing impairment “to be compensated” was 11.37% which the Medical Assessor noted translated to 6% WPI. Hence the Medical Assessor assessed the appellant’s permanent impairment from his injury of hearing loss deemed to have happened on 31 March 2011 was 6% WPI.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant accepted the audiometric measurements the Medical Assessor obtained of his hearing and accepted the Medical Assessor’s “diagnosis with respect to the frequencies relied upon to calculate his noise induced hearing loss”. The appellant accepted the correction the Medical Assessor made for presbycusis and the loading the Medical Assessor assessed should be made for tinnitus. In short, the appellant accepted the Medical Assessor’s assessment that “the adjusted total” of his binaural hearing impairment due to noise was 37.9% equating to 19% WPI.
The appellant submitted that the Medical Assessor erred by making a deduction under s 323 for the effect that his exposure to noise in the period 2011 to 2012 had on his hearing, that is the noise to which he was exposed subsequent to his employment with the respondent.
Further, the appellant submitted that the Medical Assessor erred by applying s 323 at all. In substance, the appellant submitted that in accordance with s 17 of the 1987 Act all of his noise induced hearing loss was considered to have occurred in one blow as at the date of injury, which is 31 March 2011. The appellant contended that s 17 “does not permit an enquiry into how much noise induced hearing loss was caused by employment with the respondent compared to any other employment, regardless of when that employment occurred”. In other words, the appellant contended that any hearing loss he had suffered before he commenced employment in New South Wales or subsequent to his ceasing employment in New South Wales could not be the subject of a deduction under s 323 or otherwise. The appellant referred to decisions of other Medical Appeal Panel’s, differently constituted, namely Curran v Linfox Armaguard Pty Ltd[1], Roderick Hay v Stanton Family Trust (t/as Lakeside Leisure Village)[2].
[1] [2021] NSWPICMP 76 (Curran).
[2] Matter M1-6422/20 (Hay).
The appellant also submitted, in the alternative, that the Medical Assessor by “applying a pro-rata method of deduction” to determine what deduction should be made for hearing loss caused other than in employment in New South Wales made an error. The appellant noted that there was
“no historic or audiologic evidence in the present matter which shows the level of the appellant’s hearing loss, if any, in 1970 when he arrived in Australia, in 1975 when he commenced employment, in 2002 when he ceased self-employment and commenced employment with the respondent, in 2011 when he ceased employment with the respondent, or in 2012 when he ceased work as a sole trader”.
The appellant submitted that the Medical Assessor by applying a “pro-rata method” made an assumption and speculated when making a deduction, which is contrary to the authority of Pereira v Siemens Ltd[3]. The appellant submitted that in the event the Appeal Panel were to find that he had a pre-existing injury or condition that warranted a deduction under s 323 the deduction should be assumed to be 10% consistent with s 323(2).
i
In reply, the respondent submitted that it is open for a Medical Assessor to consider evidence of a pre-existing element pre-dating the period of relevant employment and for a Medical Assessor to make a deduction under s 323 if that pre-existing element contributes to the appellant’s impairment.
The respondent submitted that Hay is not binding on the Medical Appeal Panel. The respondent noted that the relevant authorities relating to s 323 require that no deduction can be made under s 323 absent there being evidence establishing a pre-existing injury, condition or abnormality. The respondent submitted, in substance that the Medical Assessor followed “a reasoning process” that was supported by the history he obtained relating to the appellant’s exposure to industrial deafness that enabled the Medical Assessor to form a clinical judgment when considering the application of s 323.
The respondent submitted that the evidence before the Medical Assessor permitted the Medical Assessor to make “a pro-rata deduction under s323”. The respondent submitted that it was open to the Medical Assessor to draw a conclusion that the level and intensity of the noise to which the appellant was exposed whilst self-employed was of the same level and intensity of noise he was exposed to whilst employed by the respondent.
The respondent submitted that the referral to the Medical Assessor required the Medical Assessor to assess the degree of permanent impairment of the appellant as a result of the injury. The respondent submitted, relying on Schofield v Abigroup Ltd[4] that the appellant’s injury is limited to the injury for which the respondent is liable under s 17(1)(c), that is the binaural hearing impairment deemed under s 17(1)(a) to have occurred in New South Wales.
[4] (2016) NSWSC 954 (Schofield).

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.

The Appeal Panel observes that there has been no challenge to Medical Assessor Raj’s finding that the appellant’s binaural hearing impairment due to hazardous noise is 37.9%, which is the adjusted total of his hearing impairment, that is his hearing loss in the frequency ranges from 1500 to 4000Hz after a correction has been made for presbycusis and an amount added for severe tinnitus. The Appeal Panel further observes that the appeal relates to, firstly, whether the Medical Assessor was correct to apply s 323(1) of the 1998 Act and make a deduction for any proportion of the appellant’s permanent impairment due to a previous injury or pre-existing condition or abnormality and in the circumstance that the Medical Assessor was correct to do so whether the deduction he made under s 323(1) was correct, and secondly, whether the Medical Assessor was correct to exclude from his assessment of the appellant’s permanent impairment any impairment the appellant had from his exposure to noise after he ceased employment with the respondent.
As part of the process of assessing the appellant’s permanent impairment from his injury of hearing loss, that was deemed under s 17(1)(a) of the 1987 Act to have happened on 31 March 2011, the Medical Assessor was required by s 323(1) of the 1998 Act to deduct from whatever he assessed was the total of the appellant’s permanent impairment from hearing loss due to exposure to hazardous noise any proportion of that permanent impairment that was due to any abnormality or condition the appellant had prior to the time the appellant commenced employment to which s 17 of the 1987 Act relates. The deduction the Medical Assessor made under s 323(1) included, however, a component for loss of hearing due to noise to which the appellant was exposed in 2011 and 2012, that is, after he had ceased his employment with the respondent. Insofar as the Medical Assessor did that, the Medical Assessor erred because any condition or abnormality that occurred to the appellant’s hearing organs in that period occurred after the appellant had ceased employment with the respondent and therefore that condition or abnormality was necessarily not in existence before the appellant commenced employment to which s 17 relates.
Contrary to the appellant’s submissions, and consistent with the authority of Schofield, if any proportion of the appellant’s permanent impairment was due to exposure to hazardous noise that followed the appellant ceasing employment with the respondent, then that part of the appellant’s impairment would not be included in the appellant’s impairment resulting from the injury for which he was referred for assessment.[5]
[5] Schofield at [33].
Insofar as the appellant relies on the authority of Curran to support his submission that any hearing impairment he has due to noise to which he was exposed subsequent to his ceasing employment with the respondent is to be included from the permanent impairment resulting from his injury on 31 March 2011, the Appeal Panel notes that it is not bound by that authority whereas it is bound by the authority of Schofield.
The evidence however was that the appellant was exposed to noise in his self-employment as a bricklayer in this period for one to two hours a day only. The evidence was that he wore hearing protection when using noisy equipment. The Appeal Panel, relying on the knowledge of its expert members, notes that for a noise to be hazardous, so as to cause industrial deafness, it must exceed the following thresholds:
85Db for 8 hours a day;
88Db for 4 hours a day;
91Db for 2 hours a day, and
94Db for 1 hour a day.
Based on the evidence before the Appeal Panel, the Appeal Panel considers that it was unlikely that the appellant’s exposure to noise in the period 2011 to 2012 exceeded those levels and consequently was not hazardous. In other words, in the Appeal Panel’s view it is unlikely that the appellant’s exposure to noise in that period damaged in a significant way his hearing organs, specifically his cochlea. Consequently, it is unlikely that any of the appellant’s hearing impairment is due to his exposure to noise after he ceased employment with the respondent.
The Appeal Panel does not accept the appellant’s submissions that s 323(1) is not engaged in this case for any proportion of the appellant’s impairment that is due to an abnormality or condition that the appellant had before he commenced employment to which s 17 of the 1987 Act applies. The authority of Curran, and the several authorities to which reference was made in that decision, are not germane to what the Appeal Panel here has to consider. That matter involved the appellant worker suffering an injury of hearing loss that was deemed to have occurred on 2 April 2006 in the course of his employment as a dispatch driver with the respondent in that case. The appellant’s employment with the respondent however continued beyond 2 April 2006 but the respondent became licensed under the Safety, Rehabilitation and Compensation Act 1988 (CTH) on 2 April 2006. The Approved Medical Specialist in that case made a deduction of 10% pursuant to s 323 for “employment outside New South Wales from 3 April 2006 to 2017”.
The authorities make clear that s 17 of the 1987 Act is a special provision that creates a series of fictions and presumptions and dispenses the need for a worker to establish causation of an actual hearing loss from work. That is, a worker does not have to establish that his or her employment with a particular employer brought about or contributed to his or her hearing loss. The authorities establish that the work of s 17 is to determine the identity of the employer who last employed the worker in employment to the nature of which an injury of hearing loss by gradual progression was due. The authorities to which the appellant referred, other than Hay, do not, upon the Appeal Panel’s reading of them, provide assistance in a circumstance, such as this case, where a worker had a condition or abnormality relating to his or her hearing organs that presently impairs his or her hearing and that existed before he or she commenced employment to which s 17 relates. Insofar as the appellant relies on the authority of Hay to contend that s 323(1) of the 1998 Act is not engaged in such circumstance, the Appeal Panel notes that it is not bound by that authority whereas it is bound by the authority of Pereira and the relevant authorities to which reference is made therein.[6]
[6] Pereira at [81]-[90].
In Pereira Garling J held, in substance, that there must be factual material sufficient to establish a previous hearing loss or pre-existing condition or abnormality affecting the hearing organs before s 323 can be engaged. If there is and if that condition or abnormality contributes to a proportion of the appellant’s hearing loss then a deduction must be made under s 323(1).
Further, what the appellant contends is inconsistent with the express provisions of the legislation. Section 68B(4) of the 1987 Act stipulates that when determining the compensation payable by an employer in a case in which s 17 applies, s 323 of the Act applies to that compensation, other than in the circumstance where in the five years before the date of the worker’s injury the worker had been employed by more than one noisy employer.
Further again, s 2A of the 1987 Act stipulates that the 1987 Act is to be construed as if it formed part of the 1998 Act and in the event of any inconsistency between the 1987 Act and the 1998 Act the 1998 Act prevails. Section 66 of the 1987 Act provides a worker with an entitlement to compensation for permanent impairment resulting from an injury so long as the degree of permanent impairment from the injury is more than 10%. Section 65 of the 1987 Act stipulates that the degree of permanent impairment resulting from an injury is to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act. Part 7 includes s 323. In other words, the degree of a worker’s permanent impairment from an injury of hearing loss for the purpose of establishing if and what entitlement the worker has to compensation for the permanent impairment must be assessed by reference to Part 7 of Chapter 7 of 1998 Act, and if therefore a proportion of the worker’s loss is due to a condition that the worker had before commencing employment to which s 17 relates, s 323 requires there be a deduction for that proportion.
The Appeal Panel considers that the evidence in this matter establishes that the appellant had sustained irreversible and permanent damage to his cochlea before he commenced employment to which s 17 applies. The cochlea is part of the inner ear and is similar in structure to a seashell. It is approximately 33 millimetres in length. It has hair cells along its length and damage to those hair cells will cause hearing loss. The hair cells 10 millimetres along the length of the cochlea from its basal opening are the first to be permanently damaged by exposure to hazardous occupational noise of a nature and duration to do so. The first permanent partial hearing loss occurs at frequencies affected in this region of the cochlea namely at 3, 4 and/or 6 kHz even if asymptomatic. And with continuing exposure to that hazardous occupational noise the injury here gradually worsens causing increasing permanent partial hearing loss at these frequencies even if asymptomatic.
Consequently the Medical Assessor was correct to engage s 323(1) when assessing the appellant’s permanent impairment resulting from the injury that was referred for assessment. This was because the noise to which the appellant was exposed while working as a bricklayer in Yugoslavia would have permanently and irreversibly damaged his cochlea. That damage did not result in any symptom at the time. That is it did not result in any hearing loss or tinnitus prior to the appellant commencing employment to which s 17 relates.
The further damage to the appellant’s hearing organs that the appellant suffered during employment to which s 17 of the 1987 Act relates, added to the already existing damage in the appellant’s cochlea resulting in symptoms of hearing loss and tinnitus. The pre-existing damage to the appellant’s cochlea contributes a proportion of his present hearing impairment, because without that pre-existing damage, the appellant’s hearing loss would not be as great.
Although the Medical Assessor was correct to apply s 323(1), he did not however, do so in the correct way. This is because the Medical Assessor assumed that the proportion of the appellant’s hearing impairment that was due to the pre-existing irreversible and permanent damage that the appellant had sustained to his cochlea could be done on a pro-rata straight line basis. The Medical Assessor was required to address the evidence and to make inferences or make findings of fact, based on that evidence, regarding to what extent the appellant’s damage to his cochlea before the appellant commenced employment to which s 17 relates could have affected his current hearing impairment. The Appeal Panel notes that there was no medical evidence, such as an audiogram, that would enable a finding to be made on the extent to which the appellant’s cochlea was damaged prior to his starting employment to which s 17 relates. The Appeal Panel considers that based on the evidence that is before the Appeal Panel, and which was before the Medical Assessor, that it is simply too difficult to determine the exact extent to which the appellant’s cochlea was damaged prior to his commencing employment to which s 17 relates and hence, in accordance with s 323(2) of the 1998 Act, the Medical Assessor ought to have assumed that the proportion of the appellant’s permanent impairment resulting from his hearing loss that was due to the damage to his cochlea prior to his commencing employment to which s 17 relates, was 10%. Making that assumption is not contrary to what evidence is presently before the Appeal Panel.
Noting that no challenge was made to the Medical Assessor’s conclusion that the appellant’s adjusted total of binaural hearing impairment, after a correction of presbycusis was done and an addition for tinnitus made, was 37.9%, which equates to 19% WPI, when a deduction under s 323(1) is made the appellant’s resultant permanent impairment due to the injury of hearing loss deemed to have occurred on 31 March 2011 is 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 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:	W3763/21
Applicant:	Milorad Bodiroza
Respondent:	Alpha & Omega Bricklaying Pty Ltd

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 Dr Thandavan 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:

Injury deemed to have happened on:	Frequency Hz	Left dB HL Air Bone		Right dB HL Air Bone		Total % BHI	Occupational % BHI
31/03/2011	500	55	40	45	40	8.6	0
1000	50	40	50	40	12.1	0
1500	60	60	55	60	11.3	11.3
2000	70	60	75	60	11.8	11.8
3000	95	85	9.6	9.6
4000	110	95	10	10
63.4	42.7
TOTAL % BHI: 63.4%
Less Pre-existing non-related loss: 20.7 = 42.7%
Less Presbycusis correction: 6.8% = 35.9%
Add % of severe tinnitus: 2% = 37.9%
Less 10% S323 deduction of 3.79% = Adjusted total 34.11%
Resultant total BHI of 34.11% = 17% 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.

[2022] NSWPICMP 483

29 November 2022