Bucher Municipal Pty Ltd v Lustrissimi
[2024] VSC 735
•29 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 02480
| BUCHER MUNICIPAL PTY LTD | Plaintiff |
| v | |
| ADAM LUSTRISSIMI | First Defendant |
| - and - | |
| DR MATTHEW CAMPBELL | Second Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 November 2024 |
DATE OF JUDGMENT: | 29 November 2024 |
CASE MAY BE CITED AS: | Bucher Municipal Pty Ltd v Lustrissimi |
MEDIUM NEUTRAL CITATION: | [2024] VSC 735 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel opinion – Plaintiff claimed in respect of industrial deafness and tinnitus – Accepted injury in respect of industrial deafness; tinnitus rejected – Medical questions referred to a medical panel – Medical panel calculated whole person impairment of 11% taking into account allowance of 2% for tinnitus – Whether opinion legally unreasonable, illogical, irrational or not open – Whether failure to take account of relevant matters – Whether constructive failure to exercise jurisdiction owing to factual error – Whether denial of procedural fairness – Whether reasons of medical panel legally inadequate – Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Chang v Neill (2020) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, Scardamaglia v Amcor Pty Ltd [2023] VSC 114 and Amcor PLC v Scardamaglia [2023] VSCA 290, considered – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | MF Fleming KC with E Golshtein | Hall & Wilcox |
| For the First Defendant | B McManamey | IDA Legal |
| For the Second Defendant | No appearance |
HIS HONOUR:
A Introduction
The first defendant was born on 12 October 1977 and is presently 47 years of age.
For about 20 years, he was employed in metal fabrication and spray painting at Bucher Municipal Pty Ltd (‘plaintiff’). He was exposed to noise in that employment and, from about 2013, noticed decreased hearing acuity.[1]
[1]Joint court book (‘JCB’) 48. See also JCB 81, 88.
On 14 July 2022, the first defendant claimed an impairment benefit in respect of ‘Ears Hearing / Tinnitus‘.[2]
[2]JCB 59.
The claims agent (‘agent’) referred the first defendant for assessment by Mr Robin Hooper, otorhinolaryngologist and honorary emeritus consultant.
On 14 November 2022, Mr Hooper reported that –
(a) he had been asked to determine, inter alia, the degree of impairment of the whole person resulting from any diminution of hearing;
(b) the first defendant gave a history including ‘difficulty hearing speech in background noise’ and ‘constant ringing in the ears’;
(c) ‘pure tone audiometry showed a bilateral moderate high frequency hearing loss’ and the first defendant had ‘100% speech discrimination in the right ear and 97% speech discrimination in the left ear at appropriate levels of amplification’;
(d) ‘the total hearing disability … [was] 11.8% binaurally’; and
(e) the first defendant’s ‘compensable hearing loss … [represented] a whole person impairment of 10%’.[3]
[3]JCB 90.
Mr Hooper’s assessment sheet identified no additional allowance for tinnitus.[4]
[4]JCB 92.
On 16 November 2022, the agent wrote to Mr Hooper which led him to reconsider certain aspects of his opinion.[5]
[5]JCB 79.
On 28 November 2022, Mr Hooper issued a revised report. Among other things, he re-assessed the first defendant’s hearing loss at 4.3%, which converted to an assessment of impairment of the whole person of 0%.[6]
[6]JCB 80-83.
On 29 November 2022, the agent notified the first defendant that –
(a) liability was accepted for ‘[i]ndustrial deafness’, but rejected for tinnitus;
(b) ‘[l]iability has been rejected for tinnitus because the injury claimed forms part of your noise induced hearing loss injury’;
(c) the degree of whole person impairment had been determined after taking into account the assessment by Mr Hooper (a copy of which was enclosed);
(d) he had a total payable entitlement of $0; and
(e) he could disagree with one or more aspects of the calculation and assessment, and in that event, he would be referred to a medical panel.[7]
[7]JCB 61-69.
On 7 December 2022, the first defendant disputed the assessment of physical impairment.[8]
[8]JCB 70.
On 10 January 2023, the agent referred medical questions to a medical panel. The referral was accompanied by various documents, including the reports of Mr Hooper and written submissions of the agent.[9]
[9]JCB 71-120.
The medical panel was comprised of one member, Dr Matthew Campbell, otolaryngologist (‘Panel’).
The Panel examined the first defendant on 30 March 2023 and provided its certificate of opinion on 13 April 2023, which states, relevantly –
Question a) What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s assessed in accordance with Division 4 of Part 2?
Answer: The Whole Person Impairment calculated in accordance with the Act is 11%. The degree of impairment is permanent.
Question b) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in Section 221?
Answer: No.[10]
[10]JCB 47.
The Panel’s certificate of opinion was accompanied by its written reasons.[11]
[11]JCB 48-53.
B The Panel’s reasons
In its written reasons, the Panel stated that it formed its opinion with regard to the documents and information provided, the history given by the first defendant and its examination findings.
The Panel recorded the substance of the history given by the first defendant, including the following –
[The first defendant] told the Panel that he has had decreased hearing acuity over the past 10 years and particularly notices a beeping tinnitus which he hears mostly in his left ear which has been present for seven years and is present most of the time. His wife complains that he has the television turned up too loud and he tends to have to use the loud speaker function on his mobile phone to be able to hear what is being said to him on the phone. He has trouble hearing at social gatherings. [12]
[12]JCB 48.
The Panel recorded the results of its physical examination of the first defendant’s ears.[13]
[13]JCB 49.
The Panel then stated –
The Panel conducted a hearing test (copy enclosed) and calculated the hearing loss in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition) published by the National Acoustic Laboratory (NAL). The Panel considers the results of the audiogram were reliable.
The Panel considers that the hearing test showed that the worker was suffering from a bilateral asymmetrical “notched” sensorineural high frequency hearing loss typical of inner ear degeneration from noise exposure.
The Panel used the lowest (least hearing loss) reliable thresholds as the basis for compensation.
The Panel noted that at thresholds where there were differences between the air and bone conduction thresholds, the bone conduction thresholds were used in accordance with the Australian Society of Head and Neck Surgery (ASOHNS) Guidelines (Revised 2017 clause 6d). The Panel noted that there was nothing in the history to indicate that there should be greater left hearing loss in the lower frequencies. This correlates with Mr Hooper’s opinion in [his] supplementary report dated 23 November 2022.
The Panel calculated the binaural hearing loss with the thresholds at 2000, 3000 and 4000 Hertz. The Panel referred to ASOHNS Guidelines, Revised February 2017, Point 6c, paragraph 5 for when the “non compensable component in the other ear or asymmetry at any of 2, 3, and 4kHz exceeds 20dB”. In the Panel’s opinion, the asymmetry with respect to the left ear at 2000 Hertz is worse by 25dB and as such the better right ear is used to determine sensorineural losses due to occupational noise exposure.
The Panel calculated the percentage hearing loss using the readings in the better right ear (2000 Hertz 25/25 = 1.1%, 3000 Hertz 40/40 = 3.2% and 4000 Hertz 50/50 = 4.4%), resulting in an 8.7% binaural hearing loss. There was no deduction for ageing as the worker is 45 years old.[14]
[14]JCB 49-50.
No part of the above is presently said to be erroneous.
Primarily, the plaintiff’s complaints are directed to the following passage concerning tinnitus –
The Panel noted the worker’s history of tinnitus and of diminished hearing acuity in group setting or differing voice pitches. The Panel considers that speech discrimination is a measure of a person’s ability to understand speech which it is presented at a level that is easily heard. Notwithstanding that the Panel is of the opinion that speech discrimination was within normal limits, it acknowledges the worker’s history of a reduction in speech discrimination in social situations. The Panel therefore considers that the NAL assessment for hearing loss does not adequately allow for the worker’s tinnitus, as it interferes with the function of the ears and does impair speech discrimination in social situations. The Panel allocated an impairment percent of 2% for tinnitus in accordance with the text on page 9/224 of the Guides. The Panel added this allowance to the NAL assessment of 8.7% resulting in a total compensable loss of 10.7%.[15]
[15]JCB 50.
In the circumstances, the Panel calculated a degree of permanent whole person impairment of 11%.[16]
[16]Ibid.
Without the allocation of an impairment percentage of 2% for tinnitus, the degree of impairment of the whole person would have converted to 0%.[17]
[17]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 63(1)(a).
C The proceeding
The plaintiff commenced proceedings by originating motion filed 9 June 2023.
The originating motion included a first ground of review directed to the proposition that the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), the Improved Procedure for Determination of Percentage Loss of Hearing published by the National Acoustic Laboratory (NAL Procedure) and the Guidelines for the Assessment of Noise Induced Hearing Loss published by the Victorian Section of the Australian Society of Otolaryngology Head and Neck Surgery (ASOHNS Guidelines) did not permit the addition by the Panel of a percentage impairment for tinnitus to an assessment performed in accordance with the NAL Procedure and/or ASOHNS Guidelines.
That ground was deleted in an amended originating motion filed 9 May 2024. The amended originating motion relies upon the following three grounds of review –
2.In determining its opinion upon question 1, the Medical Panel fell into jurisdictional error and/or error of law in allocating an impairment of 2% in respect of the worker’s tinnitus under the AMA Guides.
PARTICULARS
(a)The Medical Panel stated that it ‘considers that the NAL assessment for hearing loss does not adequately allow for the worker’s tinnitus, as it interferes with the function of the ears and does impairment speech discrimination in social situations’, and that it ‘allocated an impairment percent of 2% for tinnitus in accordance with the text on page 9/224 of the Guides’.
(b)The AMA Guides provide: ‘Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage up to 5% may be added to the impairment for hearing loss’.
(c)The Medical Panel’s allocation of an impairment 2% (being 40% of the maximum possible allowance under the AMA Guides, if applicable) was made notwithstanding that it was ‘of the opinion that speech discrimination was within normal limits’. Further, the material before the Medical Panel included a report of Mr Robin Hooper dated 14 November 2022, which stated that the worker ‘had 100% speech discrimination in the right ear and 97% speech discrimination in the left ear at appropriate levels of amplification’.
(d)In the circumstances, the Medical Panel’s allocation involved a finding which was legally unreasonably [sic], and/or grossly illogical or irrational, and/or not open to it; further or alternatively, the Medical Panel failed to have regard to mandatory relevant considerations; further or alternatively, there was a constructive failure by the Medical Panel to perform its statutory function.
3.In determining its opinion upon question 1, the Medical Panel failed to accord the plaintiff procedural fairness.
PARTICULARS
In circumstances where the material before the Medical Panel included a report of Mr Robin Hooper dated 14 November 2022, which stated that the worker ‘had 100% speech discrimination in the right ear and 97% speech discrimination in the left ear at appropriate levels of amplification’, the plaintiff could not reasonably have anticipated that the Medical Panel would allocate an impairment of 2% (being 40% of the maximum possible allowance under the AMA Guides, if applicable) in respect of the worker’s tinnitus, on the basis of an interference with speech discrimination.
4.The Medical Panel failed to give an adequate statement of reasons sufficient to comply with section 313(2) of the WIRCA.[18]
[18]JCB 5-11.
Dr Matthew Campbell, the second defendant, indicated that he would not appear and would submit to such orders as the Court might make in the proceeding.[19]
[19]Cf R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
The plaintiff and first defendant each filed and served comprehensive written submissions.[20] The plaintiff also filed and served a written reply.[21]
[20]JCB 12-38.
[21]JCB 39-46.
The plaintiff advanced written argument in respect of the three grounds of review stated in the amended originating motion. Argument under the second ground was developed with a view to making out three distinct contentions of error.[22]
[22]That is, (1) legal unreasonableness, illogicality, irrationality and that the Panel’s answer was ‘not open’, (2) the Panel failed to take account of the findings of Mr Hooper ‘in any meaningful way’ and (3) factual error amounting to a constructive failure of the Panel to perform its statutory function: JCB 15-24.
In substance, the plaintiff contended that the Panel had erred in allocating an impairment of 2% for tinnitus. In particular, it was submitted that –
(a) the reasons of the Panel revealed an absence of any ‘evident or intelligible justification’ for the allocation;[23]
[23]JCB 18-19 [34]-[35].
(b) in that regard, the Panel misconstrued and ‘impermissibly extrapolated’ from the history given by the first defendant;[24]
[24]JCB 19-20, particularly at [35] and [41]. See also, JCB 23-24, particularly at [56]-[57].
(c) further –
[36] The primary unreasonableness … is that it was illogical and/or irrational for the Panel to have made a finding that the worker suffered from impaired speech discrimination (arguably, at any percentage value), in circumstances where the Panel, through its own examination and investigations, and in the application of its own medical expertise, in fact found that the worker’s speech discrimination ‘was within normal limits’.
[37] That finding is … suggestive of a distinct lack of measurable impairment. It is illogical and/or irrational to simultaneously find that one’s speech discrimination is ‘normal’, and nevertheless proceed to allocate a percentage ‘impairment’. It is either normal, or it is impaired. The Panel did not, for example, conclude (on the basis of its own opinion) that the worker’s speech discrimination was anything other than ‘within normal limits’; ie, ‘not within normal limits’ or ‘impaired’, or indeed ‘possibly impaired’. If it had drawn any one of those various conclusions, it could have said so. It did not do so.[25]
[25]JCB 19 (emphasis in original).
(d) the Panel failed to take into account Mr Hooper’s findings in relation to speech discrimination ‘in any meaningful way’;[26]
[26]JCB 21-23, particularly at [50].
(e) the Panel failed to afford the plaintiff procedural fairness;[27]
[27]JCB 24-25, particularly at [63]-[65].
(f) in that connection –
63.Given the material before the Panel included reporting from Dr Hooper to the effect that the worker ‘had 100% speech discrimination in the right ear and 97% speech discrimination in the left ear at appropriate levels of amplification’ (and no other opinion indicative of material or significant impact of tinnitus on speech discrimination), the plaintiff could not reasonably have anticipated that the Panel would then allocate an impairment of 2% (being 40% of the maximum possible allowance under the AMA Guides) in respect of the worker’s tinnitus. Such conclusion came ‘out of the blue’.
64.Despite forming its own opinion that ‘speech discrimination was within normal limits’, the Panel appears to have acted upon a history provided to it by the worker of ‘tinnitus and of diminished hearing acuity in group setting or differing voice pitches’, and/or of ‘a reduction of speech discrimination in social settings’ due to tinnitus. Notwithstanding that the plaintiff was aware that the worker experienced tinnitus, the history upon which the Panel has acted represented new information, relevant to the assessment, which was adverse to the interests of the plaintiff.
65.In all the circumstances, where the Panel was contemplating allocating an additional percentage of impairment for the relevant effect of the worker’s tinnitus on the basis of his own history – and particularly where it had formed its own opinion that speech discrimination was within normal limits – it was incumbent on the Panel to revert to the parties to afford them the opportunity to provide additional material, and/or comment by way of submissions.[28]
(g) the Panel ‘did not provide sufficiently detailed reasons, nor a sufficient path of reasoning’.[29]
[28]JCB 25.
[29]JCB 26-27, particularly at [70].
In response, the first defendant submitted that the Panel had made no error. Among other things, it was submitted that –
(a) the American Medical Association Guides to the Evaluation of Permanent Impairment (‘AMA Guides’) relevantly state that disturbances of the ear due to tinnitus are not measurable – consequently, the Panel was required to exercise its discretion based upon the history given by the plaintiff;[30]
(b) the Panel found that the first defendant’s tinnitus interferes with the function of the ears and impairs speech discrimination in social situations – consequently, ‘the speech discrimination test was not relevant’;[31] and
(c) Mr Hooper had recorded a history of constant ringing in the ears and that the first defendant had difficulty hearing speech in background noise, but did not make any additional allowance for tinnitus.[32]
[30]JCB 33 [21].
[31]Ibid [22].
[32]JCB 34 [23]-[24]. I note that there are earlier paragraphs numbered [23] and [24] at JCB 33. That is, those paragraph numbers are duplicated on consecutive pages of the written submissions. Attention is presently directed to those paragraphs appearing at JCB 34.
In oral argument, senior counsel for the plaintiff directed attention to various parts of the plaintiff’s written submissions. In so doing, it was submitted that –
(a) the various alleged errors were directed to the Panel’s allocation of 2% for tinnitus – not any other part of the Panel’s opinion;[33]
[33]Transcript (‘T’) 3.
(b) in respect of the Panel’s ‘important sentence’ (‘… speech discrimination was within normal limits’) –
… we say that … there is something fundamentally wrong about the [P]anel’s ultimate conclusion about whether there should be additional whole person impairment added for speech discrimination, having regard to the fact that the [P]anel has just found that speech discrimination was within normal limits.
We also note in relation to that sentence the [P]anel saying it acknowledges the worker’s history of a reduction in speech discrimination in social situation[s], and we also in our written submissions … take issue with the [P]anel’s language at this point. We say that there is a jarring inconsistency with the exact words that were used in the history … .[34]
[34]T6-7. See also, T16 and T19.
(c) any assessment for tinnitus must be ‘limited to possible impairment of speech discrimination’;[35]
[35]T14.
(d) the circumstances were different in Amcor PLC v Scardamaglia (‘Scardamaglia appeal’);[36]
[36]T17; [2023] VSCA 290 (‘Scardamaglia appeal’).
(e) the Panel’s allocation of a 2% impairment for tinnitus was not open, in that –
As soon as they’d found the speech discrimination was within normal limits that was really the end of it … or if it wasn’t the end of it they need to explain absolutely clearly how they could get from … capacity for speech discrimination within normal limits to the conclusion that he came to.[37]
(f) as to procedural fairness, Mr Hooper reached a conclusion very similar to the Panel and there was ‘no other opinion indicative of … [any] significant impact of tinnitus on speech discrimination’ – consequently, the Panel’s finding was ‘new information’ that could not have been anticipated.[38]
[37]T18.
[38]T21-22.
In that connection, counsel for the plaintiff referred to various principles outlined in Barrett Burston Malting Co Pty Ltd v Kotzman (‘Barrett Burston’),[39] Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’),[40] Chang v Neill (‘Chang’),[41] Sidiqi v Kotsios (‘Sidiqi’)[42] and the Scardamaglia appeal.[43]
[39][2013] VSC 248 (‘Barrett Burston’).
[40](2013) 252 CLR 480 (‘Wingfoot’).
[41](2020) 62 VR 174 (‘Chang’).
[42][2021] VSCA 187 (‘Sidiqi’). In respect of legal unreasonableness, senior counsel also drew attention to several High Court decisions referred to by the Court of Appeal in Sidiqi, particularly Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
[43]Scardamaglia appeal (n 36).
For his part, counsel for the first defendant submitted, relevantly –
(a) speech audiometry involves testing ‘your ability to hear a single voice against a silent background’;[44]
[44]T28.
(b) the reasons of the Panel were an ‘almost textbook application’ of the test later confirmed in the Scardamagliaappeal;[45]
[45]T30; Scardamaglia appeal (n 36).
(c) the plaintiff was seeking to ‘isolate the words “normal limits” without taking [account of] the whole sentence’;[46]
[46]T30.
(d) in context, what was being said by the Panel was ‘abundantly clear’ –
The speech audiometry testing in the laboratory circumstance or the consulting rooms is within normal limits. ‘It’s within normal limits because if I apply enough amplification I can get to a proper speech discrimination’. That’s fine. But [the reasons of the Panel acknowledge] the worker’s history of reduction in speech discrimination. The speech audiometry does not test the speech discrimination in social settings.[47]
(e) the plaintiff’s point about procedural fairness was not factually correct and, in any event, procedural fairness does not generally require a panel to invite comment.[48]
[47]Ibid.
[48]T32-34.
In reply, counsel for the plaintiff referred to parts of the written reply submissions and contended, particularly, that –
(a) Mr Hooper’s testing results revealed ‘a distinct lack of impairment, much like the [P]anel’s’;[49]
[49]T36.
(b) it follows that the Panel went beyond the audiogram ‘in circumstances that are … inexplicable’;[50]
[50]Ibid.
(c) in that regard, the first defendant’s history to the Panel –
… was not that it affected speech discrimination, rather that it affected his ability to hear at social gatherings; a trouble in hearing, not in discriminating words.[51]
(d) consequently, there had been ‘an impermissible extrapolation from the history in fact taken;[52] and
(e) in circumstances where the Panel found that speech discrimination was within normal limits, it was not open to find that the first defendant suffered any additional impairment.[53]
[51]T37.
[52]T38.
[53]T39.
D Consideration
It will be evident from the above that –
(a) the plaintiff does not contend that the Panel misconstrued the AMA Guides, the NAL Procedure, or the ASOHNS Guidelines;
(b) the plaintiff’s complaints essentially relate to the passage in the Panel’s reasons concerning tinnitus;[54] and
[54]Extracted above at [20].
(c) the nub of those complaints is that –
(i) the Panel misconstrued the history given by the first defendant;
(ii) the Panel’s allocation of an additional impairment of 2% for tinnitus was illogical, irrational, unreasonable and not open in light of its finding that speech discrimination was ‘within normal limits’;
(iii) the Panel did not explain ‘absolutely clearly’ how it could ‘get’ from a finding that speech discrimination was ‘within normal limits’ to an allocation of an additional impairment of 2% for tinnitus; and
(iv) the Panel denied procedural fairness to the plaintiff.
The applicable principles were not in dispute. In particular –
(a) a panel must give its own opinion and is not bound to make up its mind by reference to competing submissions or medical opinions;[55]
[55]Wingfoot (n 40) [47].
(b) the opinions of a panel are necessarily informed by expertise which the Court does not possess;[56]
[56]Sidiqi (n 42) [34].
(c) it is difficult to establish that the opinion of a panel is not open in circumstances where ‘that opinion was materially informed by the expertise’ of the panel;[57]
[57]Ibid [37].
(d) a panel has a broad discretion as to the manner in which it evaluates the facts;[58]
[58]Sidiqi (n 42) [39].
(e) that said, factual error can amount to legally reviewable error;[59]
(f) in an appropriate case, a panel may make an additional allowance of up to 5% for impairment or diminution of hearing arising from tinnitus;[60] and
(g) a panel will not afford a party a reasonable opportunity to be heard if it reaches an adverse opinion on a matter which could not reasonably have been anticipated.[61]
[59]Chang (n 41) [92].
[60]Scardamaglia appeal (n 36) [51]-[53].
[61]Barrett Burston (n 39) [48]. See also Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [40] (‘Wagstaff’).
In the present instance, it is clear enough that the first defendant told the Panel that most of the time he hears a beeping tinnitus in his left ear relevant to a difficulty hearing at social gatherings. In that regard, ‘decreased hearing acuity’, ‘particularly … tinnitus’ and ‘trouble hearing at social gatherings’ appear in the same short paragraph of the Panel’s reasons.[62]
[62]JCB 48.
A similar history seems to have been taken by Mr Hooper, who recorded that the first defendant experienced a ‘constant ringing in the ears’ and ‘difficulty hearing speech in background noise’.[63]
[63]JCB 89.
The history given by the first defendant was later referred to by the Panel in the paragraph of its reasons concerning tinnitus.[64] In that regard, the Panel referred to ‘the worker’s history of tinnitus and of diminished hearing acuity in group setting or differing voice pitches’.[65]
[64]See above at [20].
[65]JCB 50.
As I have noted, the plaintiff claims that the Panel misconstrued or ‘impermissibly extrapolated’ from the history given by the first defendant. To me, the Panel’s later reference links quite naturally and without evident error to the history earlier recorded.
In any event, the plaintiff’s contention that the Panel misconstrued or impermissibly extrapolated from the history given seems centred in a contention that the first defendant should be taken to have complained of ‘a trouble in hearing, not in discriminating words’.
Plainly enough, the first defendant reported that hearing tinnitus affected his capacity to hear at social gatherings. Ordinarily, that would be understood as amounting to a contention that his ability to hear people speak at social gatherings is, at least in part, impaired by his hearing tinnitus. After all, what usually happens at social gatherings is that people speak, often more than one at a time, and it can hardly be surprising that a ‘beeping tinnitus’ present most of the time might contribute to the particular difficulty which a person might experience in that setting.
While the plaintiff sought to identify a distinction between ‘hearing’ and ‘discriminating words’, it is unlikely that the first defendant was drawing any such distinction. As I have indicated, it is much more likely that when the first defendant indicated that his tinnitus was a factor contributing to his difficulty hearing at social gatherings, that description was intended to and did convey his difficulty in discriminating speech at such gatherings.
It follows that –
(a) I do not accept that it could be wrong for the Panel to have so understood the history given; and
(b) the complaint that the Panel misconstrued or ‘impermissibly extrapolated’ from the history given must be rejected.
Perhaps the more fundamental point advanced by the plaintiff was that there is an unexplained inconsistency between the Panel’s ‘finding’ that the first defendant’s ‘speech discrimination was within normal limits’ and its subsequent allocation of an impairment of 2% for tinnitus.
For a host of reasons, it is important not to read the reasons of a panel as if they are the words of a statute.
Further, considered in proper context, there does not seem to me to be any lack of sufficient explanation, illogicality, irrationality or inconsistency in what the Panel said.
In that regard –
(a) as I have noted, the first defendant told the Panel of a particular difficulty hearing at social gatherings;
(b) the Panel plainly understood the first defendant’s experience of tinnitus to be relevant to that difficulty, and I do not accept that the Panel misunderstood what the first defendant was saying;
(c) the Panel undertook a hearing test and ‘calculated’ the hearing loss revealed;[66]
[66]JCB 49.
(d) that testing included an assessment of word recognition and therefore speech discrimination;[67]
[67]JCB 52-53.
(e) the Panel considered the test results to have been relevantly ‘within normal limits’;
(f) however, the Panel did not consider all aspects of the first defendant’s experience of speech discrimination to have been captured by the testing;
(g) in that connection, it explained, in substance, that –
(v) such testing measures the ability of a person ‘to understand speech which .. is presented at a level that is easily heard’;
(vi) therefore, the test results did ‘not adequately allow’ for the interference by tinnitus with ‘the function of the ears and … speech discrimination in social situations’; [68]
(h) in the circumstances, the Panel allocated an impairment percent of 2% for tinnitus ‘in accordance with the text on page 9/224 of the [AMA] Guides’.[69]
[68]JCB 50.
[69]Ibid.
To me, the Panel’s reasons were quite sufficiently detailed and clear in order that the above pathway might readily be discerned.
In that regard, it is clear enough that in saying that ‘speech discrimination’ was ‘within normal limits’, the Panel was not saying that the first defendant’s every experience of speech discrimination should be taken to be ‘normal’. To do so would be to reject the first defendant’s history of difficulty hearing speech at social gatherings, which the Panel plainly accepted.
Further, the reasons of the Panel seem clearly to distinguish between the first defendant’s experience of speech discrimination revealed on testing (which can be ‘calculated’ and, as the Panel explained, ‘measures’ the ability of a person to understand speech easily heard) and that experienced by him in a social environment (which, as it explained, the testing ‘does not adequately allow for’).
That the Panel was drawing such a distinction is also reinforced by its express reference to ‘the text on page 9/224 of the [AMA] Guides’, which reads as follows –
Disturbances of the ear, such as … tinnitus, are not measurable. Therefore, the physician should estimate an impairment percentage based on the severity of those conditions and the degree to which they interfere with the functions of the ear, and a percentage that is consistent with established values.
Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage up to 5% may be added to the impairment for hearing loss.[70]
[70](Emphasis added).
That is, a disturbance of the ear such as tinnitus is ‘not measurable’, so the assessor is instructed to ‘estimate’ an impairment of up to 5%, which may then be ‘added’ to the impairment percentage identified on testing.
In addition to the above –
(a) the Panel’s opinion was plainly informed by its own expertise concerning tinnitus as well as the testing which it performed; and
(b) the course undertaken by the Panel conforms with that later endorsed by the Court of Appeal in the Scardamaglia appeal – in which Beach, McLeish and Macaulay JJA referred to the potential for an assessor to consider whether or not the diminution of hearing assessment should take account of a diminution of hearing that ‘might not be fully accounted for’ by formal testing.[71]
[71]Scardamaglia appeal (n 36) [52]-[53(1)].
I should add that I do not accept that the Panel erred in failing to take ‘meaningful’ account of the findings of Mr Hooper concerning speech discrimination. In that regard –
(a) as counsel for the plaintiff sought to emphasise in argument, the test findings of Mr Hooper were ‘much like the [P]anel’s’;[72]
[72]T36.
(b) the Panel plainly took account of its own test findings, but did not consider them to be determinative of the present question – for the reasons it explained;
(c) consequently, there is no reason to conclude that any additional consideration by the Panel of the findings made by Mr Hooper could have altered the position;
(d) in any event, the Panel did refer to aspects of Mr Hooper’s opinions and, inferentially, his results of testing;[73] and
(e) it was for the Panel to form and give its own opinion – not to decide the matter or make up its mind by reference to the findings and opinions of Mr Hooper.[74]
[73]JCB 49.
[74]Wingfoot (n 40) [47].
I also do not accept that the Panel erred in estimating the impairment percentage for tinnitus at 2%. In the present case, that seems quintessentially to have been an estimate undertaken within the expertise of the Panel and could not be said to give rise to a reviewable error of law.[75]
[75]So much was essentially acknowledged in argument, albeit perhaps indirectly: T17-18.
In light of the above, the plaintiff’s various complaints to the effect that the Panel’s opinion was illogical, irrational, unreasonable, not open or inadequately reasoned must be rejected.
That brings me, finally, to the contention that the plaintiff was denied procedural fairness.
As I have noted,[76] the plaintiff essentially submits that –
(a) the first defendant’s history of tinnitus and diminished hearing acuity in group settings or differing voice pitches was ‘new information’; and
(b) given the material before the Panel – particularly the reports of Mr Hooper – the Panel’s allocation of 2% for tinnitus came ‘out of the blue’ and could not reasonably have been anticipated.
[76]Above at [29(f)].
I do not accept that the first defendant’s history was ‘new information’. As I have earlier noted, an essentially identical history seems to have been given to Mr Hooper.[77]
[77]See JCB 89.
Nor do I accept that, in the circumstances, the allocation by the Panel of an additional percentage for tinnitus could be said to have come ‘out of the blue’ in the sense that the plaintiff could not reasonably have anticipated it.[78]
[78]Barrett Burston (n 39) [48]. See also Wagstaff (n 61) [40].
There is obviously not a denial of procedural fairness merely because the Panel came to an opinion that was different to that of Mr Hooper.
In the present instance, as I have noted, Mr Hooper took a history of tinnitus and difficulty hearing speech in background noise, but plainly made no additional allowance for it.[79]
[79]JCB 92.
As I have also noted, the agent took issue with aspects of Mr Hooper’s report dated 14 November 2022, which caused Mr Hooper to issue a revised report dated 28 November 2022. However, the agent did not take any issue with Mr Hooper’s treatment of the issue of tinnitus.
In that context, on 29 November 2022 the agent rejected the first defendant’s claim in respect of tinnitus because, it was said, ‘the injury claimed form[ed] part of your noise induced hearing loss injury’.[80] Clearly enough, the agent considered Mr Hooper to have been of the view that the first defendant’s complaints in respect of tinnitus were covered by the test results.
[80]JCB 62.
On 7 December 2022, the first defendant disputed the agent’s determination in respect of physical impairment.[81]
[81]JCB 70.
Consequently, on 10 January 2023 the agent referred the medical questions to a medical panel. The reasons given for the referral included that liability had been rejected for tinnitus.[82]
[82]JCB71-75.
The referral was accompanied by written submissions of the agent, although those submissions did not refer to tinnitus.[83]
[83]JCB 76-78.
The reports of Mr Hooper, determination of the agent and referral of questions to a medical panel all preceded the decision of Forbes J in Scardamaglia v Amcor Pty Ltd (‘Scardamaglia first instance’).[84]
[84][2023] VSC 114 (‘Scardamaglia first instance’).
In Scardamaglia first instance, the plaintiff contended that a panel had erred in failing to account for tinnitus. The defendant submitted that there was no error as the whole of the impairment was encompassed by the results of testing and any further allowance for tinnitus would result in duplication.[85]
[85]Ibid [43].
In reasons for decision published on 15 March 2023, her Honour determined that the relevant percentage for tinnitus would not necessarily be the same as that assessed by the NAL Procedure.[86]
[86]Scardamaglia first instance (n 84) [54]-[55].
In that general connection, her Honour stated —
65Therefore in answering question 1, the Panel erred by failing to consider the effect of tinnitus on the hearing function of the ear as provided for by the ASOHNS Guidelines. The ASOHNS Guidelines referred to the ENT assessment under Chapter 9 of the AMA Guides, which remains relevant on the question of any specific allowance to be made for tinnitus in the presence of hearing loss. That measurement is informed by the severity of the condition and the degree to which it interferes with the hearing function of the ear. It permits an additional allowance of up to 5% before conversion to WPI. Under s 91(4) of the Act, that allowance would form part of the percentage diminution of hearing, together with other adjustments to the NAL Procedure required by application of s 91(4)(a)(ii).
66Accordingly, in conducting its assessment for industrial deafness, the Panel should have made any additional allowance of up to 5% for the effect of tinnitus as it considered appropriate, in addition to the binaural loss of hearing assessed and determined in accordance with the NAL Procedure. This overall figure constitutes the percentage of diminution of hearing in accordance with s 91(4) of the Act, and it is this figure that should be converted to a degree of whole person impairment in accordance with the formulae in s 91(3) of the Act.
In short, her Honour accepted that the scheme permitted an additional allowance of up to 5% for tinnitus and rejected the submission of the defendant that the whole of the impairment was necessarily encompassed by the results of testing.
That, of course, was essentially the basis upon which the agent had interpreted the reports of Mr Hooper and rejected the first defendant’s claim in respect of tinnitus.
At the point at which Scardamaglia first instance was decided, it seems to me to be very unlikely that the plaintiff did not know about it. The agent seems to have been very alive to such issues – as shown by its almost immediate correspondence with a view to persuading Mr Hooper to revise aspects of his opinion.
Further, the solicitors for the first defendant in Scardamaglia first instance are the same as those that came to be retained for plaintiff in the present proceeding – although that is a point of much less direct relevance.
In any event, the plain present relevance of Scardamaglia first instance was such that the agent plainly ought reasonably to have known about it. Among other things, at that point, the first defendant had not yet attended the Panel for examination and, obviously, the Panel had not yet published its opinion in respect of the medical questions.
In those circumstances, notwithstanding the tension between the manner in which the agent had determined the present claim and her Honour’s reasons in Scardamaglia first instance –
(a) the agent does not seem to have raised the matter with Mr Hooper to see whether he considered that there ought, in fact, be any additional allocation of a percentage impairment beyond the results obtained on testing;
(b) the agent did not provide any further written submissions to the Panel; and
(c) neither the agent nor, for that matter, the first defendant, provided a copy of Scardamaglia first instance to the Panel.
The Panel published its opinion almost exactly a month later, on 13 April 2023.
It will be evident from what I have already said that the Panel’s reasons were relevantly consistent with the approach endorsed by Forbes J in Scardamaglia first instance, albeit that its reasons do not refer to her Honour’s decision.
In the circumstances described, it does not seem to me that the plaintiff could not reasonably have anticipated that, consistently with Scardamaglia first instance, the Panel may well come to act upon the first defendant’s history of tinnitus and make an ‘additional allowance of up to 5%’.
Put another way, in the immediate aftermath of Scardamaglia first instance, such reasoning could hardly be said to have come ‘out of the blue’.
It might well be unnecessary to go any further. However, it also seems to me that, in the circumstances described, the relevant inactivity of the agent and therefore plaintiff is most likely to be explained by it having taken the view that Scardamaglia first instance was wrong.
In that regard –
(a) an application for leave to appeal was made from the decision in Scardamaglia first instance, although the decision was later confirmed to be essentially correct by the Court of Appeal in the Scardamaglia appeal; and
(b) the first ground of review stated in the originating motion later filed in respect of the opinion of the Panel seems also to have been directed to the proposition that the Scardamaglia first instance-style reasoning of the Panel was wrong, although that ground was deleted after the decision of the Court of Appeal in the Scardamaglia appeal.
In those circumstances, albeit that the applicable standard has been identified as an ‘undemanding’ one, it seems to me to be fanciful to consider that if the Panel had given notice of its intention to reason as it did, that would have elicited any response that could realistically have caused the Panel’s determination to be any different.[87]
[87]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 [12]-[15].
At that point, as I have noted, the agent or plaintiff had not raised Scardamaglia first instance with Mr Hooper or the Panel.
In those circumstances, the most that might have been expected if the agent or plaintiff had been notified of the Panel’s intention was a short submission to the effect that Scardamaglia first instance was thought to be wrong and an appeal was under consideration or had been commenced.
Any such step would not realistically have been likely to have altered the determination of the Panel as –
(a) Scardamaglia first instance was a relevant decision of the Supreme Court; and
(b) the reasoning in Scardamaglia first instance was supportive of the approach in fact ultimately taken by the Panel.
The more likely result is that the agent or plaintiff would have said nothing at all.
In any event, of course, Scardamaglia first instance was later confirmed by the Court of Appeal to have been essentially correct.
In all the circumstances, the contention that the plaintiff has suffered any material deprivation of procedural fairness must be rejected.
E Conclusion
The proceeding must be dismissed.
I will hear from the parties concerning the form of final orders, including in respect of costs.
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