Chalipilias v Barnwell Cambridge Pty Ltd
[2023] NSWPICMP 327
•18 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chalipilias v Barnwell Cambridge Pty Ltd [2023] NSWPICMP 327 |
| APPELLANT: | Steven Chalipilias |
| RESPONDENT: | Barnwell Cambridge Pty Limited |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Joseph Scoppa |
| MEDICAL ASSESSOR: | Robert Payten |
| DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (hearing loss); whether Medical Assessor erred by measuring noise-induced hearing loss by reference to the less affected left ear; by excluding hearing losses at 1500Hz and below from his assessment; by making a deduction for ‘pre-existing non-related’ losses; or by allowing only 2% for severe tinnitus; Held – Medical Assessment Certificate is confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
Steven Chalipilias (the appellant worker) appeals from the Medical Assessment Certificate of Medical Assessor Harrison (MA) dated 15 March 2023, who assessed an 8% whole person impairment (hearing loss) as a result of injury on 5 May 2020 (deemed date).
In doing so, he measured noise-induced hearing loss by reference to the less affected left ear, excluded hearing losses at 1500hz and below, and made an allowance of 2% for severe tinnitus.
He assessed total binaural hearing impairment (BHI) of 58.5%. From that, he deducted 37.4% for non noise-induced loss and 8.3 for presbycusis, yielding 12.8%. Allowing 2% for severe tinnitus yielded 14.8% BHI, which converts to 8% whole person impairment.
The appellant alleges that the Medical Assessor erred:
(a) by measuring noise-induced hearing loss by reference to the less affected left ear only;
(b) by excluding hearing losses at 1500hz and below;
(c) by making an excessive deduction of 37.4% for “pre-existing non-related” losses, referred to in par [6] of the submissions as “deductions for work outside the state and non-work-related hearing loss”, and
(d) by making an allowance of only 2% for severe tinnitus, when the evidence supported an allowance of 3% made by Dr Fagan, who had examined the worker at the request of his solicitors.
In each case, he also says the assessor failed to give adequate reasons.
The Appeal Panel conducted a preliminary review of Medical Assessor Harrison’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). Though it identified demonstrable error, the error was capable of correction without further examination.
Submissions
The appellant’s submissions are summarised above.
In summary, Barnwell Cambridge Pty Limited (the respondent) submits as follows.
(a) The MA is not obliged to disclose every one of his reasons. He is required to explain his path of reasoning with sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law: Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43. He has done this.
(b) He explained that he measured losses by reference to the less affected left ear, and excluded losses at 1500hz and below, because noise-induced hearing loss was typically symmetrical, and progressive from the lower to the higher frequencies, which was not the pattern observed on testing.
(c) The MA took into account the contrary opinions of Dr Fagan and Dr Niall (who assessed the worker at the request of the insurer) but was not bound by them. It was his task to assess the worker as he presented at examination, using his clinical judgment.
(d) The MA found that bilateral tinnitus was severe. It was reasonably open to him to allow 2% in circumstances where he found that it was constantly present and can interfere with sleep. He was not bound to allow 3% for tinnitus as Dr Fagan did.
Measurement of losses by reference to the left ear
At [10a] of the Medical Assessment Certificate, the MA gave the following reasons for measuring hearing loss by reference to the less affected left ear – emphasis added:
“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 noise induced occupational hearing loss is always solely sensorineural and almost always fairly symmetrical which is not the case here with the significantly worse hearing on the right side with its conductive element. I have therefore apportioned the occupational hearing loss affecting the right side to be equal to the amount affecting the left side.”
Those reasons make it plain that the MA has measured bilateral losses by reference to the less affected left ear, because noise-induced losses are almost always fairly symmetrical. In other words, asymmetrical loss as in this case indicates that the amount by which losses in the right ear exceed those in the left is unlikely to have been noise-induced, and therefore unlikely to result from injury.
In our view, his reasons are patent, and correct.
We can identify no error, or the application of incorrect criteria.
Exclusion of losses at 1500Hz and below
At [10c] the MA gave the following reasons for excluding losses at 1500Hz and below from his assessment of impairment resulting from noise-induced hearing loss – emphasis added:
“Even on the left side however the hearing loss is not consistent with solely noise induced hearing loss. This is because such hearing loss increases progressively in the affected frequencies from lower to higher frequency until at least 3000 cps and the lower frequencies are usually preserved. Again this is not the case here where the frequencies below 2000 cps are affected to the same extent or slightly more than 2000 cps. So the profile of the audiogram below 2000 cps is inconsistent with being due to occupational noise exposure whereas in the frequencies 2000 cps and above it is consistent with this diagnosis. I have therefore apportioned the occupational hearing loss to the frequencies 2000 cps and above on the left side which gives 21.1% BHI before mandatory deduction for presbycusis and 12.8% after such deduction.”
Those reasons make it plain that the MA has excluded losses at 1500Hz and below, because hearing at those frequencies is usually preserved despite losses at higher frequencies due to noise exposure, and the pattern of the audiogram at the lower frequencies is inconsistent with noise-induced hearing loss.
This is because sound enters the inner ear or cochlea at its basal coil where the sound sensitive hair cells responsible for the frequencies 3000 to 6000 cps are situated. Hence in gradual onset noise induced hearing loss, the greatest amount of damaging sound energy affects this region.
Adjacent regions of the cochlea can be affected – for instance, hair cells responsible for reception at 2000Hz – but less and less with increasing distance from this region as the energy dissipates with distance. That is not the pattern demonstrated here. As indicated by the MA, losses at 1500Hz and below are affected to the same extent or slightly more than at 2000Hz.
In our view, Medical Assessor Harrison’s reasons are patent, and correct. We can identify no error, or the application of incorrect criteria.
Deduction of 37.4% for pre-existing non-related losses and work outside the State
In the table attached to the Medical Assessment Certificate, the MA calculated a total BHI of 58.5%, which was arrived at by adding the figures for “Total BHI %” in the 5th column in respect of the six frequencies tested.
From that, he has deducted 37.4% for “pre-existing non-related loss”. 37.4% represents the difference between total BHI of 58.5% and 21.1%, which is the sum of the hearing losses measured in the left ear on air conduction at 2000Hz and above.
That deduction was based on his findings that, due to asymmetry of losses, some of the losses in the right ear were not caused by noise exposure and, due to the shape of the audiogram, losses at 1500Hz and below were not so caused.
Contrary to the appellant’s submissions, the MA made no finding to the effect that any loss was due to noise exposure outside NSW. Notwithstanding the use of the term “pre-existing in the Table (which is standard), he could not identify the source of the non-noise-induced loss, and made no finding as to where or when it had occurred. He did not need to. It was sufficient to find that it was not induced by noise. We can identify no error in this approach.
Tinnitus
Where tinnitus is assessed as severe, as it was here, an allowance of up to 5% is permissible: Guidelines at [9.11]. The assessment of where in the range of 0% to 5% the severity of the tinnitus lies is a matter for the application of clinical judgment, based on the worker’s presentation at examination. Medical Assessor Harrison did just that: he used his clinical judgment to assess the tinnitus as ‘severe’, and just below the middle of the range, where 0% is the least severe, and 5% the most severe. He was not bound by Dr Fagan’s assessment as the worker had presented to him in July 2022, some seven months earlier.
We can identify no error or the application of incorrect criteria.
Conclusion
For the reasons given, the Medical Assessment Certificate of Medical Assessor Harrison is confirmed.
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