Bonds v Ledonne Constructions Pty Ltd
[2022] NSWPICMP 46
•11 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bonds v Ledonne Constructions Pty Ltd [2022] NSWPICMP 46 |
| APPELLANT: | Dennis Raymond Bonds |
| RESPONDENT: | Ledonne Constructions Pty Ltd |
| APPEAL PANEL: | Member Catherine McDonald |
| DATE OF DECISION: | 11 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of noise induced hearing loss; long exposure to noise without wearing hearing protection; inclusion of losses at 500 and 1,000 Hz; the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment paragraph 9.9; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 December 2021 Dennis Raymond Bonds lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 November 2021.
Mr Bonds relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) - that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We have 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 2018 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 2018.
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
Mr Bonds was employed by Ledonne Constructions Pty Ltd (Ledonne) as a plant operator between 20 September 2017 and 1 January 2018. He has not worked since that date. there is no dispute that Ledonne was his last noisy employer.
Ledonne’s insurer agreed to pay for hearing aids but disputed that Mr Bonds’ hearing loss resulted in more than 10% whole person impairment (WPI).
The Medical Assessor assessed 19.5% binaural hearing loss which converts to 10% WPI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
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 there is sufficient information in the file 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.
The MAC
The Medical Assessor noted that Mr Bonds had been aware of hearing loss for 20 years and tinnitus for two years. He had worked for Ledonne between September 2017 and 2018 as a machine operator. The Medical Assessor considered that the employment would be sufficient to cause noise induced hearing loss. He summarised Mr Bonds’ employment history which exposed him to loud noise for 48 years. He said that there was non-occupational hearing impairment of 1.0% (which corresponds to the loss at 500Hz.)
The Medical Assessor said:
“On examination both tympanic membranes are normal and intact and audiometry shows a bilateral high tone sensori-neural slightly asymmetrical hearing loss. The slight extra loss of hearing in the left ear is not relevant.”
In explaining his calculations the Medical Assessor said:
“In my opinion, the asymmetry in Mr Bonds’ audiogram is not significant. This difference is not significant and is less than that requiring investigation (15dB or greater difference between the averages of 500, 1000, 2000 and 3000 Hz) as recommended by AAO-HNS (Otolaryngol Head and Neck Surg. 1995; 113: 179-180).
Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies. After consideration of the cumulative noise emission levels to which Mr Bonds’ has been exposed, I consider that the frequencies 1000 Hz and above in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.”
The Medical Assessor summarised his findings, assessing 18.9% binaural hearing impairment but deducting 1.0% as non-occupational hearing impairment. He made a correction for presbycusis of 2.4% and added 4% for severe tinnitus, resulting in occupational hearing impairment of 19.5% and 10% WPI.
The Medical Assessor commented on the reports of the doctors qualified by the parties:
“My audiogram is not the same as the audiogram carried out by Dr Fagan. I disagree with Dr Fagan including the frequency 500 Hz in the calculations for noise induced hearing loss, as the hearing loss at 500 and 1000 Hz on my audiogram is the same and this is not consistent with noise induced hearing loss. I agree with Dr Fagan’s assessment that Mr Bonds has severe tinnitus and a loading of 4% is indicated.
My audiogram is not the same as the audiogram carried out by Dr Macarthur. I disagree with Dr Macarthur excluding the frequency 1000 Hz in the calculations for noise induced hearing loss and I also disagree with his addition of 1% for severe tinnitus.
I agree with both Dr Fagan and Dr Macarthur in that Mr Bonds requires hearing aids for his occupationally induced hearing loss.”
Other medical evidence
Dr P Fagan reported on behalf of Mr Bonds on 27 July 2020. He said that all of the hearing loss from 500 to 4,000 Hz was due to noise exposure at work, based on the long period of loud noise exposure and the consistently descending configuration of the audiogram. He also allowed 4% for severe tinnitus. He assessed 38.6% binaural hearing loss, which converts to 19% WPI.
Dr P Macarthur examined Mr Bonds on behalf of Ledonne and reported on 2 November 2020. He said that there is no obvious cause for the mild, low tone sensorineural loss. He assessed 22% binaural hearing loss then subtracted the losses at 500 and 1,000 Hz and the appropriate percentage for presbycusis at the date of his examination. He allowed 1% for tinnitus. He assessed 18.6% binaural hearing loss or 10% WPI. Dr Macarthur said that the losses at 500 and 1,000 Hz were within normal limits.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by his solicitor, Mr Glavan, Mr Bonds submitted that the Medical Assessor made demonstrable errors in stating that the losses on the audiogram at 500 and 1000 Hz were the same and by failing to include the loss at 500 Hz in his assessment. He said it was appropriate to include those frequencies when he had been employed in noisy employment for 48 years and quoted at length from the Medical Appeal Panel decision in Shone v Country Energy[1] (Shone).
[1] [2007] NSWWCCMA 18.
In reply, Ledonne submitted that the Medical Assessor had provided cogent reasons for excluding the loss at 500 Hz, including his reasons for not agreeing with Dr Fagan. Ledonne noted that the decision in Shone does not mean that the lower frequencies should always be included in the calculation of noise induced hearing loss.
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.
There is no dispute that Mr Bonds was exposed to loud noise for 48 years. He said in his statement that he worked for Ledonne as a plant operator, exposed to noise from excavators, bulldozers and other equipment. He said that he did not wear hearing protection in that employment. Apart from a period as a truck driver (where he was also exposed to noise), Mr Bonds had worked since 1970 as a plant operator or a machine operator, exposed to the noise of industrial machinery.
Dr Fagan recorded that hearing protection had not been provided in any of his jobs. Dr Macarthur also recorded that Mr Bonds had not worn hearing protection.
The Medical Assessor was incorrect to say that the losses at 500 and 1,000 Hz were the same. His audiogram shows that they were not, so that the MAC does contain a demonstrable error.
While Shone is frequently relied on to support the inclusion of the low tones, it does not have the force of authority. One Medical Appeal Panel decision is not binding on another panel. As the quote from Shone in Mr Bonds’ submissions shows, it is an example of a case in which it was appropriate to include the losses in the low tones in the assessment of noise induced hearing loss, based on the length of noise exposure and the shape of the audiogram.
The Guidelines provide in paragraph 9.9 that the evaluation of binaural hearing impairment is determined using tables RB 500 to 4000 in the National Acoustic Laboratories Report No 118 January 1988, thus directing the assessor to consider in each case which frequencies should be included, including the low tones. The question of whether losses in the low tones should be included is a matter of clinical judgement for a Medical Assessor (or an appeal panel).
The pattern of hearing loss shown on Mr Bonds’ audiogram is reasonably consistent with noise induced hearing loss, including at 500 and 1,000 Hz. Given his long history of noisy employment and the fact that he has never worn hearing protection, it is appropriate to include the losses at 500 and 1,000 Hz in the assessment of Mr Bonds’ hearing loss.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 November 2021 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
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 Kenneth Howison 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 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 Air Bone | Total % BHI | Occupational % BHI |
| 1.1.2018 | 500 | 20 | 25 | 1.0 | 1.0 |
| 1000 | 25 | 20 | 1.2 | 1.2 | |
| 1500 | 35 | 30 | 3.4 | 3.4 | |
| 2000 | 40 | 35 | 3.8 | 3.8 | |
| 3000 | 55 | 50 | 4.9 | 4.9 | |
| 4000 | 65 | 50 | 4.6 | 4.6 | |
| TOTAL % Binaural Hearing Impairment (BHI): 18.9% | |||||
| Less Pre-existing non-related loss: 0 | |||||
| Less Presbyacusis correction: 2.4 | |||||
| Add % of severe tinnitus: 4 | |||||
| Adjusted total % BHI: 20.5 | |||||
| Resultant total BHI of 20.5% = 11% 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
Catherine McDonald
Member
Dr Henley Harrison
Medical Assessor
Dr Robert Payten
Medical Assessor
11 March 2022
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