Brickwood (NSW) Pty Ltd v Boustany
[2025] NSWPICMP 65
•5 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Brickwood (NSW) Pty Ltd v Boustany [2025] NSWPICMP 65 |
| APPELLANT: | Brickwood (NSW) Pty Limited |
| RESPONDENT: | Elias Boustany |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Robert Payten |
| DATE OF DECISION: | 5 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by not considering evidence relating to respondent’s hearing loss at the time of commencement of employment with the appellant; whether MA erred by not making a deduction under section 323(1); Held – MA did not make any error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 November 2024 Brickwood (NSW) Pty Limited, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 November 2024.
The appellant relies on the ground for appeal listed at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), being that the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Elias Boustany, the respondent, lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 4 September 2024 (ARD) seeking the Commission determine a claim he made against the appellant for compensation for permanent impairment from an injury of hearing loss. The respondent had commenced employment as a factory worker with the appellant in 2002 and was still employed as such when he notified the appellant of his claim for compensation on 21 November 2022, which, in accordance with s 17(1) of the Workers Compensation Act 1987 (the 1987 Act), is deemed to be the date on which his injury happened. There is no controversy that his employment with the appellant was of such a nature as to cause hearing loss by a gradual process.
The respondent provided the appellant with a report of Dr Peter Corlette dated 18 October 2022 to support his claim. Based on the history Dr Corlette obtained and audiometry he conducted, Dr Corlette opined that the respondent due to the respondent’s exposure to occupational noise the respondent had 24.6% binaural hearing loss, after a correction had been made for presbycusis and a loading made for tinnitus. That converts to 12% whole person impairment (WPI). Dr Corlette also detailed in his report that prior to the respondent commencing his employment with the appellant he was exposed to occupational noise in two previous employments. The first of those was between 1988 and 1993 with Computer Resources and the other between 1993 and 2002 with Lamson Paragon. That history accords with what the respondent detailed in a statement he signed on 20 March 2024.
The appellant’s insurer, by a notice it issued to the respondent on 2 March 2023 under s 78 of the 1998 Act, advised the respondent that it disputed he was entitled to compensation for permanent impairment from his injury. No doubt it was that notice that precipitated the respondent instituting proceedings in the Commission. The insurer advised the respondent that it relied on a report it obtained from Dr Ken Howison dated 3 February 2023. In that report Dr Howison advised he assessed the respondent had 20.1% binaural hearing loss due to noise, after making a correction for presbycusis and adding a loading for tinnitus, which equated to 11% WPI. Dr Howison also revealed in his report that he considered the respondent’s earlier employments with Lamson Paragon and Computer Resources were of such a nature as to cause a loss of hearing by gradual process. That is apparent from what he set out on page 2 of his report wherein he said that the appellant was a noisy employer and that the respondent had been in similar employment with Lamson Paragon and with Computer Resources where the respondent was exposed to “the same noise in a factory”.
Dr Howison when assessing the degree of the respondent’s permanent impairment from his injury of hearing loss that was the subject the claim he made against the appellant, had regard to a report that a general practitioner, namely, Dr Sadiq Asar, had prepared on 26 June 2002. Dr Asar advised in his report that “on audiometry testing, binaural hearing loss was noted at 8.3%”. Dr Howison, when assessing the respondent’s permanent impairment from his injury of hearing loss that was the subject of his claim against the appellant, made a deduction from the overall permanent impairment he considered the respondent had due to exposure to occupational noise, seemingly on the basis that he considered the respondent had a loss of hearing prior to commencing his employment with the appellant. The deduction he made was the equivalent of the proportion that the loss of hearing Dr Asar reported the respondent had in 2002 bore to the overall loss that he found the respondent had from exposure to occupational noise. The result being that Dr Howison assessed that only 59.5% of the respondent’s overall permanent impairment of 11% WPI resulting from his total exposure to occupational noise was due to the injury the subject of his claim against the appellant. That is, Dr Howison advised that the respondent’s degree of permanent impairment from the injury the subject of his claim against the appellant was 6% WPI. That is less than the threshold stipulated under s 66(1) of the 1987 Act for a worker to be entitled to compensation for permanent impairment under that provision. It was for this reason that the insurer disputed the respondent’s claim for compensation for permanent impairment.
THE MAC
The Commission issued a referral on 24 September 2024 to the Medical Assessor to assess the relevant medical disputes relating to the respondent’s claim. He examined the respondent on 23 October 2024 and obtained a history of the respondent’s exposure to occupational noise consistent with the histories that both Dr Corlette and Dr Howison obtained and which accorded with what the respondent had said in this statement. The Medical Assessor also noted that the respondent had no history of heredity deafness, direct ear or head trauma, blast injury, military service, recreational noise exposure, otitis media, ototoxic exposure, otalgia, otorrhoea, and ear surgery. The Medical Assessor examined the respondent’s ears and found the external aural canals of both to be normal and the tympanic membrane of both to be intact.
The Medical Assessor conducted audiometry using a calibrated audiometer in a sound attenuated environment. He attached the audiogram he generated from that to the MAC. He also tabulated the results of that within the MAC.
The Medical Assessor found that respondent’s responses were repeatable and he concluded that the auditory thresholds he obtained were accurate. The Medical Assessor stated that the audiogram revealed a “bilateral sensorineural hearing loss maximal in the high frequency with right asymmetric sensorineural hearing loss”. The Medical Assessor considered that the respondent had “suffered from occupational noise exposure causing partial and bilateral occupational noise induced hearing loss”. He also said that the respondent “has hearing losses of uncertain aetiology (non-work-related)”. The Medical Assessor said that the medical history he obtained “demonstrates no other competing medical cause for his hearing loss”.
The Medical Assessor expressed his view that the respondent’s “sensorineural hearing loss is caused by occupational noise exposure apart from the right hearing losses in excess of the left (right asymmetry which is non-work-related) because occupational noise induced hearing loss is symmetric rather than asymmetric”. The Medical Assessor revealed that he formed that opinion after having considered the medical history he obtained and his physical examination of the respondent including the audiometry he had conducted.
Based on the audiometry the Medical Assessor conducted he assessed the respondent’s total binaural hearing impairment due to occupational noise was 25.4%. Consistent with the Medical Assessor’s view that the respondent’s excess hearing loss in his right ear over his left ear was not work related, the figure of 25.4% did not include the differential between the respondent’s right and left ear at the frequencies of 1500Hz, 2000Hz, 3000Hz and 4000Hz. The figure was computed after the Medical Assessor included 1% for tinnitus and deducted 1% for presbycusis, the net result of which was neutral. The Medical Assessor noted that 25.4% binaural hearing impairment converted to 13% WPI. He certified that is what he assessed the degree of the respondent’s permanent impairment was from his injury of hearing loss.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which he relied, and consequently there was no reason for the Appeal Panel to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not provide any reasoning or detail for why he made a 0.6% deduction for non-related hearing loss. The appellant further submitted that the Medical Assessor did not provide any reasoning for why he did not make a deduction for the 8.3% hearing loss that Dr Howison made when assessing the respondent’s hearing loss, based on the report of Dr Asar dated 26 June 2002.
In reply, the respondent submitted that the evidence in the form of the report of Dr Asar is not accurate or reliable and the Medical Assessor was right not to consider it. The respondent further submitted that there was no basis in any event to make a deduction under s 323 of the 1998 Act and this is because all his noise induced hearing loss was considered to have happened in one blow when he made his claim for compensation for permanent impairment.
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 material that was before the Medical Assessor, which of course is before the Appeal Panel, revealed that there was no dispute that the respondent’s employment in New South Wales from 1988 was of a nature to which the respondent’s hearing loss from a gradual process was due. In any event, the evidence establishes that clearly is the case. That is what the Medical Assessor concluded, and he was correct to do so.
The evidence also included an email from the State Insurance Regulatory Authority (SIRA) Insurance to Info-IDA Legal dated 14 October 2022, which the appellant put into evidence, and which is at page 58 of the Appeal Panel’s brief, that revealed that the respondent had not previously made a claim for compensation for an injury consisting of hearing loss. Consequently, as the respondent has submitted, his hearing loss due to occupational noise from all his employers was considered to have occurred in “one blow” at the time he made his claim for compensation against the appellant.[2]
[2] Commissioner for Railways v Bain [1965] HCA5; A & G Engineering Pty Ltd v Civitarese [1996] 41 NSWLR 41, Rico Pty Ltd v Road Traffic Authority [1992] 28 NSWLR 679 at [689]-[690].
The Medical Assessor consequently was correct not to consider whether the respondent had any hearing loss due to occupational noise at the time he commenced his employment with the appellant. He had not at that point suffered a prior injury of hearing loss. Further, the history the Medical Assessor obtained and the results of the audiometry the Medical Assessor performed revealed that, with the exception of the respondent’s loss of hearing in his right ear to the extent it exceeded the loss of hearing in his left ear, there was no other cause of the respondent’s hearing loss than his exposure to hazardous occupational noise.
If the Appeal Panel is wrong with respect to that matter, that is that the Medical Assessor ought to have considered whether at the time the respondent commenced his employment with the appellant the respondent had any loss of hearing that was due to his earlier exposure to hazardous noise, which to emphasise the Appeal Panel does not consider is the case but merely explores this as a hypothetical, then in the Appeal Panel’s view the Medical Assessor ought to have ignored the evidence in the form of the report of Dr Asar. This is because that evidence is so unreliable that it can be given no weight. It is unreliable because it is not known from Dr Asar’s report what frequencies he tested. It is also not known whether he conducted his audiometry in a sound proofed booth. with a calibrated audiometer. Without knowing those matters, and as just indicated, his opinion regarding the respondent’s hearing loss in 2002 is unreliable.
The Appeal Panel also considers that the Medical Assessor rightly excluded the differential between the respondent’s right ear hearing loss and his left ear hearing loss when assessing the degree of the respondent’s permanent impairment from his injury. That is the 0.6% to which the appellant referred in its submissions. Further, the Medical Assessor clearly explained in the MAC why he did so. He excluded that component of the respondent’s hearing loss because it was not caused by occupational noise and therefore was not due to his noisy employment. He explained that this component of the respondent’s hearing loss could not be due to occupational noise because hearing loss from occupational noise is symmetrical. That is obvious because both ears of a worker are exposed to the same amount of noise from the source of the noise.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 November 2024 should be confirmed.
0
3
0