Camarda v C-Lite Pty Ltd
[2023] NSWPICMP 148
•19 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Camarda v C-Lite Pty Ltd [2023] NSWPICMP 148 |
| APPELLANT: | Leslie Camarda |
| RESPONDENT: | C-Lite Pty Ltd |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Joseph Scoppa |
| DATE OF DECISION: | 19 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Medical Assessor (MA) assessed total Binaural Hearing Impairment (BHI) of 25.5% and then deducted 9.9% for pre-existing non-related loss and 1.7% for presbycusis correction which resulted in an adjusted total BHI of 13.9% or 7% WPI; MA accepted the history of occupational noise exposure and noted “no other competing medical cause for hearing loss” but made deductions at every frequency; Panel noted that the MA made deductions for the greater losses in the right ear, such loss being of unknown aetiology, as did both Independent Medical Examiners; Held – Panel satisfied that MA provided an adequate and detailed explanation in relation to why he made the deductions in all frequencies; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 December 2022 Leslie Camarda (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian Williams, Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with 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
The appellant sustained a bilateral hearing loss in the course of his employment with C-Lite Pty Ltd (the respondent), having been exposed to loud noise. The deemed date of injury was 1 April 2015.
The matter was referred to the Medical Assessor on 4 November 2022 for assessment of whole person impairment (WPI) in respect of hearing loss deemed to have occurred on 1 April 2015.
The Medical Assessor examined the appellant on 24 November 2022 and assessed total BHI of 25.5%. The Medical Assessor then deducted 9.9% for pre-existing non-related loss and 1.7% for Presbyacusis correction which resulted in an adjusted total BHI of 13.9%. The resultant total BHI of 13.9% was expressed as 7% WPI.
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 worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary 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 parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant submissions included the following:
(a) The appellant gave a history of being exposed to occupational noise for 35 years. The Medical Assessor took a history of no other noise exposure.
(b) The Medical Assessor was provided with the appellant's statement), the report of Dr Tomane and the report of Dr Howison. In relation to each of these, the Medical Assessor read and considered the document but "preferred his own history".
(c) The absence of a history taken by the Medical Assessor of non-industrial noise exposure was, for the purposes of performing a present-day calculation consistent with the applicant's evidence which, without any quantification in terms of duration or intensity, referred only to motor bike riding and use of firearms more than "30 years ago" without any associated deterioration in hearing.
(d) Ground 1 - the MAC contained a demonstrable error. At 8. e. of the MAC the Medical Assessor said that there was "non-related" hearing loss but at 10. a. said, "he gave a history of occupational noise exposure as described above. The above medical history demonstrates no other competing medicaI cause for his hearing loss."
(e) The error was material because the Medical Assessor went on to make deductions to hearing loss at every frequency in the range (500 Hz to 4000 Hz).
(f) Ground 2 - the Medical Assessor did not otherwise explain why he made the deductions to hearing loss at the frequencies referred to above.
(g) An appropriately detailed explanation was called for in circumstances where:
(i)there was a 35-year history of noisy employment, and
(ii)a deduction had already been made by the Medical Assessor for asymmetry to bring the worse ear down to the same level of the better ear thereby accounting for loss “inconsistent with occupational noise" (MAC p 5).
(h) The MAC therefore contained another demonstrable error and the assessment was made on the basis of incorrect criteria.
(i) The MAC should be set aside and the hearing loss recalculated according to law.
The respondent’s submissions included the following:
(a) The appellant was 63 years of age when the Medical Assessor assessed him on 24 November 2022. Based on the appellant’s history provided to the Medical Assessor, he had been exposed to occupational noise from 1980-2015. Since 2015 the appellant has been employed with other employers but the Medical Assessor recorded that the post 2015 employment did not expose him to noise. However, the appellant’s statement suggested that in his employment since 2016 to date, he was exposed to noise, but “limited noise”.
(b) The appellant also stated that he rode a motorbike when he was younger and used firearms in the past but not in the last 30 years suggesting he was possibly exposed to noise from motorbikes and firearms 30 years ago. The appellant stated that he has been aware of hearing loss for the last eight years. In other words, the appellant had experienced hearing loss or been aware of hearing loss since about 1996 after he ceased to work with the insured.
(c) When the Medical Assessor examined the appellant, he recorded a history provided by the appellant at the time, carried out clinical examination and an audiogram.
(d) Ground 1 - Based on the appellant’s history, the Medical Assessor reported: “… He gave a history of occupational noise exposure as described above. The above medical history demonstrates no other competing medical cause for his hearing loss. …”
(e) At paragraph 8e of the MAC, in response to the question “Is any proportion of loss of efficient use or impairment or whole person impairment due to a previous injury, pre-existing condition or abnormality?”, the Medical Assessor recorded that there was non-related hearing loss. It is implied that the Medical Assessor meant to state “non work-related hearing loss”. This by itself did not suggest that the Medical Assessor made a deduction for pre-existing noise exposure from use of firearm or motorbike by the appellant 30 years ago. The appellant erred in interpreting that the Medical Assessor went on to make deductions to hearing loss at every frequency in range 500 Hz to 4000 Hz based on this information.
(f) The MAC clearly indicated the Medical Assessor deducted the excessive hearing loss in the right ear based on his clinical examination findings and the audiogram results. Based on the audiogram, the Medical Assessor observed a significantly greater hearing loss in the right ear than the left. Taking into consideration that the bi-aural hearing loss of gradual process ought to be symmetric rather than asymmetric, the Medical Assessor appropriately determined that the excessive hearing loss in the right ear should not be taken into consideration in assessing permanent hearing impairment due to occupational noise induced hearing loss. This excessive hearing loss in the right ear is due to unknown aetiology. Hence, the Medical Assessor deducted the excessive hearing loss in the right ear in his final hearing impairment assessment which was very clear from the audio graph tabular table and the calculations below that.
(g) Both Dr Tamhane and Dr Howison also found excessive hearing loss in the right ear and equated the losses in the left ear to the right ear when assessing the compensable hearing impairment. This too was taken into consideration by the Medical Assessor.
(h) Ground 2 - The appellant submitted that the Medical Assessor has not explained the deductions to hearing loss at 500 Hz to 4000 Hz frequencies. Reference is made to the above submissions. It was very clear from the audiogram tabular form that the hearing loss in the right ear was significantly higher than the left.
(i) In conclusion, the Medical Assessor assessed a total of 25.5% binaural hearing impairment and then deducted 9.9% binaural hearing impairment for the excessive hearing loss found in the right ear resulting in 15.6% binaural hearing impairment. The deduction of 9.9% binaural hearing impairment was entirely due to the excessive hearing loss in the right ear which had to be disregarded based on finding of asymmetric hearing impairment in the ears.
(j) Under ‘Reasons for Assessment’ at page 5 of the MAC, the Medical Assessor concluded as follows:
“Therefore considering his medical history and physical examination including pure tone audiometry, I formed the opinion that his left sensori-neural hearing loss and an equal amount in his right ear are caused by occupational noise exposure.”
(k) There was a deduction of 1.7% for presbycusis correction and there was no addition for tinnitus based on evidence before the Personal Injury Commission.
(l) In the circumstances the Medical Assessor’s decision in regard to permanent hearing impairment assessment was appropriate and there was certainly no demonstratable error in the MAC or any assessment based on incorrect criteria by the Medical Assessor.
(m) The appeal should be dismissed and the MAC confirmed.
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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
Under “History relating to the injury”, the Medical Assessor wrote:
“Hearing Loss
He gave a history of bilateral gradually progressive hearing loss since the late 1980’s. He said the right is worse. He said he had a head scan by his GP said to be normal. He said he had the right ear to the sawing at work since the late 1980’s. He said without hearing aids he has difficulty hearing conversation, needs to increase the volume of the television above others and has difficulty hearing in background noise. He has binaural hearing aids. He said he obtained the first set in 2016 and the second set last year.
Tinnitus
He gave no history of tinnitus.
Vertigo / dizziness
He gave no history of vertigo.”
Under “Past History” the Medical; Assessor wrote:
“He gave no history of hereditary deafness. He gave no history of direct ear or head trauma or blast injury. He gave no history of otitis media or ototoxic exposure. He gave no history of Military Service or recreational noise exposure. He gave no history of otalgia (ear pain) or otorrhoea (ear discharge). He gave no history of ear surgery”.
Under “Occupational History” the Medical Assessor wrote:
“Residential Property Group 2021-present as Supervisor. He gave no history of noise exposure.
Coastal Windows and Doors for 5.5 years, 2016-2021, as Site Supervisor. He gave no history of noise exposure.
C-Lite Pty Ltd
1. 1995-2015 as Manager. He said he was in noise 30 minutes per day to 2 hours per day, 5 days a week but variable.
2. 1980-1995 as Process Worker. He said his shift was 8 hours per day 5-6 days per week. He said he was exposed to the noise of cutting aluminium, end-milling machines, nail guns, hand milling machines, window assembly and cleaning of small joint sealant by a solvent (?acetone). He said hearing protection was used in the latter years.”
Under “Audiogram” the Medical Assessor wrote: “His pure tone audiogram showed a left sensorineural hearing loss maximal in the high frequencies, and a right asymmetric sensorineural hearing loss”.
Under “Summary of injuries and diagnoses”, the Medical Assessor wrote:
“He has suffered from occupational noise exposure causing partial and bilateral occupational noise induced hearing loss, and has hearing losses of uncertain aetiology”.
Under “Evaluation of permanent impairment”, at 8(e)-(f) the Medical Assessor wrote:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes, non related hearing loss.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Hearing, non related”
Under “Reasons for assessment” the Medical Assessor wrote:
“Mr Camarda has a history of bilateral hearing loss with the right worse than the left, and unaccompanied by tinnitus. He gave a history of occupational noise exposure as described above. The above medical history demonstrates no other competing medical cause for his hearing loss. Physical examination and pure tone audiometry indicate a bilateral sensorineural hearing loss maximal in the high frequencies. The responses I obtained upon pure tone audiometry are repeatable on ascending and descending threshold measurement and I considered them to represent accurate auditory thresholds. The configuration of his sensorineural hearing loss is not one wholly caused by his occupational noise exposure as described above.
Therefore considering his medical history and physical examination including pure tone audiometry, I formed the opinion that his left sensorineural hearing loss and an equal amount in his right ear are caused by occupational noise exposure.
The right hearing losses in excess of the left are inconsistent with occupational noise induced hearing loss of gradual process which is symmetric rather than asymmetric”.
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“Statement by Mr L Camarda 14.9.22
Comment
I have read and considered this report. I prefer my history, examination, audiogram and assessment.
Report by Dr S Tamhane 8.4.22
I have read and considered this report. I prefer my history, examination, audiogram and assessment.
Dr Tamhane states ‘Considering his history of exposure to continuous loud noise … I would attribute his sensorineural hearing loss in the 500Hz, 100Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz frequencies to noise induced hearing loss’.
Dr Tamhane made no addition for tinnitus.
Dr Tamhane assessed 11% WPI due to noise induced hearing loss.
Dr Tamhane equated the right occupational noise induced hearing loss to the left hearing losses.
Audiogram 31.1.2022
Comment
I have considered this audiogram.
Report by Dr K Howison 13.7.22
Comment:
I have read and considered this report. I prefer my history, examination, audiogram and assessment.
Dr Howison states ‘… I would consider that the frequencies 1000 Hz and above have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss. The extra loss of hearing in the right ear is not noise induced and for the purpose of calculation of industrial deafness I have equilibrated the loss of hearing in the right ear to that of the left ear’.
Dr Howison made no addition for severe tinnitus.
Dr Howison assessed 6% WPI due to noise induced hearing loss.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1
The appellant submitted that the MAC contained a demonstrable error because he said that there was "non-related" hearing loss but then said, "he gave a history of occupational noise exposure as described above. The above medical history demonstrates no other competing medicaI cause for his hearing loss." The error was material because the MA went on to make deductions to hearing loss at every frequency in the range (500 Hz to 4000 Hz).
Paragraph 9.4 of the Guidelines provides:
“The level of hearing impairment caused by non-work-related conditions is assessed by the medical specialist and considered when determining the level of work-related hearing impairment. While this requires medical judgement on the part of the examining medical specialist, any non-work-related deductions should be recorded in the report”.
The Appeal Panel accepted that the Medical Assessor found that there was a non-related hearing loss and went on to state that the medical history demonstrated no other competing medical cause for the hearing loss. However, the Medical Assessor went on to conclude that the appellant suffered from occupational noise exposure causing partial and bilateral occupational noise induced hearing loss and also hearing losses of “uncertain aetiology”.
Dr Tamhane, in his report dated 8 April 2022, wrote:
“Considering his history of noise exposure and after weighing all probabilities, it would be fair to apportion a part of Mr Camarda' s hearing loss in the right ear to noise induced hearing loss. The portion of hearing loss would be the same as the percentage loss in the left ear. The additional hearing loss in the right ear is of unknown origin”.
Dr Tamhane attributed his sensorineural hearing loss in the 500Hz, 1000Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz frequencies to noise induced hearing loss.
Dr Howison, in his report dated 13 July 2022, wrote:
“Mr Camarda has been aware of loss of hearing for more that 15 years. The loss of hearing is more marked in the right ear. I note an MRI was organised by his General Practitioner because of the asymmetry of the audiogram and no serious pathology was identified.”
Dr Howison, after considering the cumulative noise exposure to which the appellant was exposed, concluded that the frequencies 1000Hz and above had been damaged by unacceptable noise levels and he used those frequencies in the calculations for noise induced hearing loss. Dr Howison wrote: “The extra loss of hearing in the right ear is not noise induced and for the purpose of calculation of industrial deafness I have equilibrated the loss of hearing in the right ear to that of the left ear.”
The fact that there was an extra loss of hearing in the right ear, which was not noise induced, was identified by Dr Howison and Dr Tamhane as well as the Medical Assessor. All of the doctors made a deduction for the extra loss of hearing in the right ear which was not noise induced and was of uncertain aetiology.
The Medical Assessor was correct to state that above medical history demonstrated no other competing medicaI cause for his hearing loss as the extra loss of hearing in the right ear was of uncertain aetiology. While the Medical Assessor did make deductions to hearing loss at every frequency in the range 500 Hz to 4000 Hz these were only deductions in respect of the extra loss of hearing in the right ear. Both Dr Tamhane and Dr Howison also apportioned a part of the appellant’s hearing loss in the right ear to noise induced hearing loss and assessed the portion of hearing loss in the right ear to be the same as the percentage loss in the left ear.
The Appeal Panel was not persuaded that the MAC contained a demonstrable error because the Medical Assessor said that there was "non-related" hearing loss but then accepted the history of occupational noise exposure and said that the medical history demonstrated no other competing medicaI cause for his hearing loss. The MAC should be read as a whole and it was clear that the Medical Assessor, as well as Dr Tamhane and Dr Howison, concluded that there was extra loss of hearing in the right ear which was not noise induced and of unknown aetiology.
Ground 2
The appellant submitted that the MA did not otherwise explain why he made the deductions to hearing loss at the frequencies referred to above. The appellant argued that an appropriately detailed explanation was called for in circumstances where:
(a) there was a 35-year history of noisy employment, and
(b) a deduction had already been made by the MA for asymmetry to bring the worse ear down to the same level of the better ear thereby accounting for loss “inconsistent with occupational noise".
The Appeal Panel was satisfied that the Medical Assessor only made deduction in the various frequencies for the extra loss in the right ear that was of uncertain aetiology. The Appeal Panel considered that the Medical Assessor provided sufficient reasons in the MAC. The Medical Assessor explained that he made deductions in respect of the additional hearing loss in the right ear that was not noise related loss. The appellant appears to have proceeded on the mistaken assumption that deductions were made for loss at the various frequencies as well as for asymmetry to bring the worst ear down to the same level of the better ear thereby accounting for loss inconsistent with occupational noise. The Medical Assessor assessed occupational noise loss at all frequencies (the Appeal Panel noted that there was no actual loss at 500Hz) and only made deductions in respect of the additional loss in the right ear that was of uncertain aetiology.
The Appeal Panel was satisfied that there was no demonstratable error in the MAC or any assessment based on incorrect criteria by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 November 2022 should be confirmed.
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