Chahal v Qantas Airways Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Chahal v Qantas Airways Limited [2024] NSWPICMP 186
APPELLANT:	Faysal Chahal
RESPONDENT:	Qantas Airways Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	3 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether appellant had pre-existing condition; whether Medical Assessor (MA) wrongly applied section 323(1); whether MA wrongly excluded appellant’s hearing losses below 3000 Hz when assessing the degree of the appellant’s permanent impairment from an injury of hearing loss; Appeal Panel held unlikely that appellant had a pre-existing condition, but MA did apply section 323(1); Appeal Panel held MA was correct not to include appellant’s hearing losses below 3000 Hz when assessing the degree of the appellant’s permanent impairment from an injury of hearing loss; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 December 2023 Faysal Chahal, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Henley Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 November 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment as a truck driver in 1991 with Qantas Airways Limited. He was then either 45 or 46 years of age. He ceased his employment on
12 June 2003, at which time he was 57 years of age. The nature of his employment with the respondent was such that it could cause a gradual loss of hearing. In other words, his employment exposed him to hazardous noise that was likely to cause hearing loss. Prior to commencing his employment with the respondent he had otherwise worked in employment that exposed him to hazardous noise at the Sydney Mail Exchange for a period of nine years.
Since ceasing his employment with Qantas the appellant has not otherwise been employed in employment which has exposed him to hazardous noise.
It is uncontroversial that the appellant suffered an injury of hearing loss and that the respondent was his last noisy employer.
The appellant claimed compensation from the respondent for permanent impairment from his injury for hearing loss. He relied on a report of ear, nose and throat physician Dr Joseph Scoppa, dated 10 November 2022, who assessed the appellant had 14% whole person impairment (WPI) from his injury of hearing loss. Dr Scoppa advised in his report that he has assessed the appellant had a total binaural hearing impairment of 52.8%. That impairment included losses of hearing the appellant had at frequencies from 500 Hz to 4,000 Hz.
Dr Scoppa said in his report that he considered the appellant’s hearing loss at the frequencies of 500 and 1,000 Hz were unrelated to industrial deafness but the appellant’s hearing losses at the frequencies of 1,500 Hz and above were due to industrial deafness.
Dr Scoppa explained that this meant that 14.1% binaural hearing impairment of the total binaural hearing impairment of 52.8% he assessed the appellant had was an impairment that was not due to industrial deafness and 38.7% binaural hearing impairment was due to hazardous occupational noise. Dr Scoppa advised a correction for presbyacusis of 9.8% was required, meaning that he assessed the appellant’s binaural hearing impairment due to industrial deafness was 28.9% which converted to 14% WPI.
Following the appellant claiming compensation from the respondent, the respondent arranged for the appellant to be examined by ear, nose and throat surgeon Dr Kenneth Howison on 10 March 2023. In a report dated 17 March 2023 addressed to the respondent Dr Howison advised he assessed the appellant had 10% WPI due to his exposure to hazardous occupational noise. Dr Howison explained that he assessed the appellant had a total binaural hearing impairment of 38.9%. Similar to Dr Scoppa, Dr Howison considered that the appellant’s losses of hearing at the frequencies of 1,500 Hz and above were due to occupational noise and that his losses below that were not. When those losses were extracted from the total binaural hearing impairment he assessed the appellant had, and after a presbyacusis correction was made, he assessed the appellant’s total binaural hearing impairment due to occupational noise was 18.9% which converts to 10% WPI.
Relying on that report of Dr Howison, the respondent notified the appellant on 26 April 2023, pursuant to s 78 of 1998 Act, that it denied liability for his claim for compensation for permanent impairment from his injury of hearing loss. It explained this was because it did not accept the degree of his permanent impairment from his injury was greater than 10% WPI, which his permanent impairment was required to exceed in order that he had an entitlement to compensation for permanent impairment under s 66 of the Workers Compensation Act of 1987 (the 1987 Act).
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim. A delegate of the President of the Commission referred the matter to the Medical Assessor on 11 September 2023. The medical disputes that were referred to the Medical Assessor to assess were described in the referral in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the nature and extent of hearing loss suffered by a worker (s319(e))
 the degree of permanent impairment of the worker as a result of an injury (s319(c))
 whether any proportion of permanent impairment is due to any previous injury or preexisting condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury : 12 June 2003
Body part/s referred: Hearing
Method of assessment: Whole Person Impairment”
The Medical Assessor examined the appellant on 16 November 2023. At the time he examined the appellant audiometry was performed in a sound proof booth using a calibrated audiometer by a qualified audiologist. The Medical Assessor attached to the MAC the audiogram from that audiometry. The Medical Assessor also tabulated in Table 4 of the MAC the results of that audiometry.
The Medical Assessor considered that, based on the audiogram, the appellant had 62.6% binaural hearing impairment. The Medical Assessor said the appellant’s bilateral sensori-neural deafness was “partly due to occupational deafness and partly due to another unknown cause or causes probably at least constitutional”. The Medical Assessor diagnosed that the appellant had industrial deafness but the Medical Assessor also said “the audiogram is not consistent with all the deafness being industrial deafness (an accurate audiogram was easily obtained)”.
The Medical Assessor assessed the appellant had 0% WPI due to his exposure to occupational noise. His reasons for that assessment were as follows:
“As stated above the history and examination are consistent with a diagnosis of occupational noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because in noise induced occupational hearing loss the lower frequencies are usually preserved and the hearing loss in the effected frequencies increases in severity with increase in frequency until at least 3000.cps. In this case the hearing loss at 2000 cps is less than the hearing loss at 3000 cps so the profile of the audiogram below 3000 cps is not consistent with that diagnosis. I have therefore apportioned the occupational hearing loss to the frequencies 3000 cps and above in which the profile of the audiogram is consistent with being due to occupational noise exposure. This apportionment gives 15.6% BHI before mandatory deduction for presbycusis and 4.9% after such mandatory deduction. He does not suffer from severe tinnitus so I have made no allowance for it. The foregoing give a resultant total BHI of 4.9% which equals 0% WPI.”
In answer to a standard question within the form that the President of the Commission has prescribed for a Medical Assessment Certificate, “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 answered yes. Subsequently at part 11a in the MAC he said that the appellant’s pre-existing condition was “non-related hearing loss”. At parts 11b and 11c of the MAC the Medical Assessor indicated that the appellant’s “non-related hearing loss” was the equivalent of 47% binaural hearing impairment.
The Medical Assessor noted that both Dr Scoppa and Dr Howison had found that the appellant’s hearing loss at 1,500 Hz and above was due to occupational noise. He noted that their respective assessments were based audiograms that differed from the audiogram that he obtained. He explained that he had confidence in the audiogram he obtained and he preferred that audiogram to the audiograms that Dr Howison and Dr Scoppa had obtained. He explained that this was because he was familiar with the experience of the audiologist he used to conduct audiometry on the appellant and the quality and maintenance of his equipment.
The Medical Assessor, when comparing his assessment with the assessments Dr Howison and Dr Scoppa had done, explained that the appellant’s hearing loss on the audiogram he obtained was less at 2,000 Hz than the appellant’s hearing loss at 3,000 Hz which the Medical Assessor said is not consistent with a loss of hearing due to occupational noise. The Medical Assessor explained this is why he attributed the appellant’s hearing loss at 3,000 Hz and above only as being due to occupational noise. The Medical Assessor also explained that it is unusual for occupational noise to affect hearing below 2,000 Hz unless there is severe and prolonged noise exposure, which he did not consider was the case with the appellant.
Ultimately, the Medical Assessor certified that the degree of the appellant’s permanent impairment from his injury of hearing loss was 0% WPI.
The Appeal Panel notes that the Medical Assessor said at part 10a of the MAC (which the Appeal Panel has extracted at [15] above) and also when comparing his assessment with the assessments that Dr Howison and Dr Scoppa had made that the appellant’s hearing loss at 2000 cps, that is 2000 Hz, is less than 3000 cps. That is an obvious typographical error, because the audiogram that the Medical Assessor obtained revealed the appellant’s hearing loss in his right ear was greater than the appellant’s hearing loss at 3000 Hz. That this is a typographical error is confirmed by the Medical Assessor not including the appellant’s hearing losses below 3000 Hz within his assessment of the degree of the appellant’s permanent impairment due to his injury of hearing loss, that is his hearing loss due to the appellant’s hearing exposure to hazardous occupational noise.

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 appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which she relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[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 had on several occasions within the MAC excluded possibilities other than exposure to hearing noise as the cause of his hearing loss. Further the appellant submitted that the Medical Assessor had also affirmed that his hearing loss was due to work related noise. The appellant submitted that in that circumstance the amount of 47% binaural hearing impairment that the Medical Assessor deducted pursuant to s 323 of the 1998 Act from his total hearing impairment for a pre-existing nonrelated loss was excessive. The appellant submitted that based on the available evidence the Medical Assessor ought to have assumed in accordance with s 323 (2) of the 1998 Act that the deductible portion for s 323 (1) for a pre-existing hearing loss nonrelated to work was 10%.
The appellant submitted that if the Appeal Panel were not minded to apply a 10% deduction under s 323 (1) then as an alternative “the most fair and equitable way in dealing with this appeal is that the deduction assessed by Dr Scoppa of 14.1% binaural loss of hearing (loss of hearing not due to industrial deafness or pre-existing nonrelated loss) be accepted as a deductible amount”.
The appellant referred to Shone v Country Energy [2007] NSWWCCMA 18 as authority in support its submissions.
In reply, the respondent submitted that the Medical Assessor was required to assess the extent of the appellant’s permanent impairment resulting from unacceptable noise exposure as a result of the appellant’s employment. The respondent submitted that the Medical Assessor correctly did that when he attributed 47% binaural hearing loss of the appellant’s overall hearing loss as not being the result of occupational hearing loss.
The respondent submitted that the Medical Assessor was only required to assess the appellant’s permanent impairment as a result of an injury and therefore was required to exclude any hearing loss that was not the result of such an injury, that is hearing loss that was not due to exposure to noise in employment. The respondent submitted that, in effect, is what the Medical Assessor did and such an approach did not require the consideration of any “pre-existing condition or abnormality”. The respondent observed that both Dr Scoppa and Dr Howison excluded from their respective assessments losses of the appellant’s hearing at frequencies that they did not consider were attributable to exposure to noise, and neither Dr Scoppa or Dr Howison made any reference to s 323.
The respondent also submitted that the Medical Assessor’s reference to a deduction being made for a pre-existing condition or abnormality may have been an error arising from the templated form for a Medical Assessment Certificate. In other words, the respondent was submitting that the MAC template had effectively trapped or fooled the Medical Assessor into describing the appellant’s non work related hearing loss as a pre-existing condition, but in reality the Medical Assessor, by excluding the appellant’s losses of hearing at frequencies below 3,000 Hz, was in fact excluding the appellant’s hearing loss that was not attributable to exposure to hazardous noise. He was not making a finding that the appellant had a pre-existing condition and making a deduction for that.
The respondent submitted that the Medical Assessor, based on his clinical examination of the appellant and the audiogram he obtained, was able to determine that 47% binaural hearing impairment the appellant had was not due to exposure to occupational noise and was of unknown origin. The respondent submitted that the appellant’s loss of hearing that was not due to occupational noise was “not necessarily pre-existing but able to be excluded as not having been the loss of a result of the injury”.
The respondent submitted that it was a matter of the clinical judgement of the Medical Assessor to determine based on the extent and duration of the appellant’s exposure to occupational noise whether the appellant’s hearing loss is at the lower frequencies where due to exposure noise.

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.
There is nothing within the MAC that indicates that the audiometry that was conducted during the Medical Assessor’s examination of the appellant did not yield accurate results. The Medical Assessor explained in the MAC that it was conducted in a quiet environment and in a suitably sound proof booth with a calibrated audiometer. The Medical Assessor said that he had confidence in the audiogram that he obtained based on the audiometry that was done during his examination of the appellant. The Medical Assessor said he preferred the audiogram he obtained rather than the audiograms of Dr Scoppa and Dr Howison. He explained this was because he was familiar with the audiologist he used to conduct the audiometry and because he was familiar with the quality and the maintenance of the equipment that she used to do it.
The Medical Assessor, being confident in the audiogram he obtained, was entitled to rely upon the results of that audiogram, rather than the audiograms of either Dr Scoppa or
[2] Ferguson v State of New South Wales [2017] NSWSC887 at [23]; Glen William Parker v Select Civil Pty Limited [2018] NSWSC140 at [65].
Dr Howison.[2]
The Appeal Panel also considers that, based on that audiogram, there is no error exposed in the Medical Assessor’s clinical judgement in finding that the appellant’s losses of hearing at the frequencies 3,000 Hz and 4,000 Hz were due to occupational noise and that his hearing losses at the thresholds below that were unrelated to his exposure to occupational noise. This is for the reason the Medical Assessor explained, being that the hearing loss at 2,000 Hz is greater than the hearing at 3,000 Hz. Saying that the reverse way, if the appellant’s hearing loss below 3,000 Hz were the result of exposure to occupational noise then they would need to be less than his losses at 3000 Hz.
The reason for this is that hearing loss due to occupational noise is the consequence of damage to the hair cells in the cochlear. The cochlear is part of the inner ear and is similar in structure to a seashell. It is approximately 33mm in length. It has hair cells along its length and damage to those hair cells due to occupational noise will cause hearing loss. The hair cells that commence approximately 10mm along the length of the cochlear from its basal opening are the first to be damaged by exposure to hazardous occupational noise, and the hearing loss at frequencies affected in this region of the cochlear are at 3, 4 and 6 kHz. Hence, where the hearing loss is greater at a frequency below 3,000 Hz, then that loss is not indictive of a loss due to hazardous occupational noise.

As noted earlier, the Medical Assessor said in the MAC that his audiogram showed the appellant’s losses at 2,000 Hz was less at 3,000 Hz, but that was an obvious typographical error, as the audiogram revealed the loss at 2,000 Hz in the right ear was greater than at 3,000 Hz.
Given that, and to repeat, the Appeal Panel can discern no error in the Medical Assessor’s conclusion that the appellant’s losses of hearing at the frequencies of 3,000 Hz and 4,000 Hz only were due to occupational noise.
The Appeal Panel also notes that the appellant commenced his employment with the respondent when either 45 or 46 years of age. He previously had only nine years exposure to hazardous noise. That means the appellant could have been no older than 36 or 37 before he commenced his exposure to hazardous noise. It is likely the case that at that time he did not have hearing loss. It is more likely that his hearing loss that is not due to hazardous occupational noise is a consequence of concomitant pathologies that have occurred in his older age.
In so far as the Medical Assessor excluded pursuant to s 323 (1) of the 1998 Act that part of the appellant’s hearing loss that was not due to hazardous occupational noise, he was in error. Nevertheless, the correction of that error ends in the same result. This is because, as the respondent submitted, the Medical Assessor was required to assess the degree of the appellant’s permanent impairment due to an injury of hearing loss that had occurred “in one blow” by a gradual process due to the appellant’s exposure to hazardous noise as at the deemed date of injury.[3] This is what the Medical Assessor has done by excluding from his assessment of the appellant’s permanent impairment from his injury those losses of hearing of the appellant at the frequencies below 3,000 Hz.
[3] Schofield v Abigroup Ltd [2016] NSWSC954 at [33].
The Appeal Panel considers that Shone is not relevant to this case. That case was decided on facts and those facts involved a worker who had been exposed to 49 years of hazardous employment were the appellant in this case has been exposed only to 21 years of hazardous employment.
For these reasons, the Appeal Panel has determined that the MAC issued on
20 November 2023 should be confirmed.

[2024] NSWPICMP 186

3 April 2024