Cronulla-Sutherland Leagues Club Ltd v Furniss
[2022] NSWPICMP 393
•11 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cronulla-Sutherland Leagues Club Ltd v Furniss [2022] NSWPICMP 393 |
| APPELLANT: | Cronulla-Sutherland Leagues Club Ltd |
| RESPONDENT: | Wayne Furniss |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Dr Henley Harrison |
| MEDICAL ASSESSOR: | Dr Robert Payten |
| DATE OF DECISION: | 11 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Industrial deafness; appellant employer alleged error in the Medical Assessor (MA) failing to provide reasoning for including frequencies below 2000Hz in the overall calculation of binaural hearing loss; in cases of industrial deafness only the frequencies between 2000Hz and 4000HZ are included in the assessment of industrial deafness unless a valid medical rationale for the inclusion of lower frequencies is required; the MA’s assessment included all frequencies from 0.5 to 4Hz; on the audiogram performed by the MA on the day of assessment the losses at these frequencies follow the typical pattern of occupational noise induced hearing loss due to the nature and duration; this being some 30 years of the worker’s occupational noise exposure; Held –the nature and duration of the worker’s occupational noise exposure and the nature and extent of all the hearing losses in the left ear at 0.5 – 4 kHz was considered; it was open to the MA to find that all of the losses including at the low frequencies are compatible with noise induced hearing loss; the MA explained that his assessment was based upon the history he obtained, the results of his physical examination, and his consideration and assessment of his audiometric findings; when regard is had to the MAC as whole there is no error to be found in the MA’s assessment or reasons; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 June 2022 Cronulla-Sutherland Leagues Club Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Joseph Scoppa, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 May 2022.
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.
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that the worker be re-examined by a MA member of the Appeal Panel. 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 the Appeal Panel, for the reasons explained below, could find no error and absent error the Appeal Panel has no power to require a worker to submit to a re-examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA 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.
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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
1.the nature and extent of hearing loss suffered by a worker (s319(e))
2.the degree of permanent impairment of the worker as a result of an injury (s319(c))
3.whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d)
4.whether impairment is permanent (s319(f)
5.whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g)
· Date of injury: 1 January 2006 (deemed)
· Body parts/systems referred: Hearing
· Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB
HL
Air Bone
Total % BHI
Occupational % BHI
1/1/2006
500
25
20
20
15
1.0
0.6
1000
40
30
30
30
4.9
3.5
1500
45
35
35
35
5.5
4.5
2000
60
40
40
40
5.6
4.8
3000
80
70
70
70
8.0
7.7
4000
90
70+
80
70+
9.1
8.9
6000
95
90
8000
95
90
TOTAL % BHI: 34.1%
Less Pre-existing non-related loss: 4.1%
Less Presbycusis correction: 1.3%
Add % of severe tinnitus: 2%
Adjusted total % BHI: 30.7%
Resultant total BHI of 30.7% = 15 % whole person impairment (Table 9.1)
The employer appealed.
In summary, the appellant’s submissions on appeal were that the MA made a demonstrable error and/or made an assessment on the basis of incorrect criteria as follows:
· in failing to provide reasoning for including frequencies below 2000Hz in the overall calculation of binaural hearing loss, and
· in cases of industrial deafness, only the frequencies between 2000Hz and 4000HZ are included in the assessment of industrial deafness, unless a valid medical rationale for the inclusion of lower frequencies is required.
In summary, the respondent worker Mr Wayne Furniss submitted that the MA did not make a demonstrable error or an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The MA recorded a history as follows:
“• brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
History of progressive hearing loss for many years, but over the last 5 to 10 years it had become more apparent, especially in background noise. He has difficulty understanding speech on television and over the telephone. He has difficulty communicating at home and when socialising with family and friends.
There was no history of previous claims for industrial deafness.
He gave a history of bilateral constant bilateral tinnitus for many years. The tinnitus often interferes with sleep and concentration. He said it is sometimes difficult to get back to sleep because of the tinnitus if he wakes up at night.
· present treatment: Nil.
present symptoms: As above
· details of any previous or subsequent accidents, injuries or condition: He gave no history of head or ear injury. There was no history of ear infection. There was no family history of deafness or ear disease. There was no history of exposure to firearms, ototoxic drugs, or recreational noise exposure.
· general health: Good
· work history including previous work history if relevant:
Mr Furniss confirmed that the history of employment and occupational noise exposure recorded in his Statement dated 18 November 2021 was a true and accurate record.
· social history /ADLs
See above.”
The MA conducted a physical examination and recorded as follows:
“Physical ear, nose and throat examination revealed no abnormality. There was some wax in the ear canals, but the visible eardrums appeared normal. The Weber Test was lateralised to the left and the Rinne Test was positive on both sides.”
An audiological examination was undertaken and the MA recorded the results in the MAC which is set out above.
The MA summarised the injury and his diagnosis and consistency of presentation as follows:
“• summary of injuries and diagnoses:
(i) Bilateral noise induced hearing loss
(ii) Mild conductive hearing loss left ear of unknown cause.
· consistency of presentation
The presentation was consistent with the history obtained, my clinical examination, and the results of audiological testing.”
The MA explained his assessment as follows:
“THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:-
The history obtained, the results of physical examination, and my consideration and assessment of my audiometric findings.
REASONS FOR ASSESSMENT
a. my opinion and assessment of whole person impairment
(i) I performed pure tone audiological testing on 25 May 2022 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. The results are shown below in tabular form in this MAC. Responses were prompt, consistent and repeatable, and I am satisfied that I obtained a reliable audiogram. I therefore prefer my audiogram. My pure tone audiogram showed a right sensorineural hearing loss and a left mixed hearing loss (a combination of sensorineural hearing loss and conductive hearing loss).
(ii) In my opinion Mr Furniss's hearing loss is not entirely due to industrial deafness because industrial deafness is typically bilaterally symmetrical and my audiogram shows an unacceptable asymmetry due to the presence of a greater hearing loss in the left ear where there is a mixed hearing loss. The sensorineural hearing loss in the left ear is consistent with and due to industrial deafness, but the conductive component of the left hearing loss is not due to industrial deafness because occupational noise exposure of gradual process does not cause conductive hearing loss. Conductive hearing loss is usually due to causes such as eardrum perforation, middle ear effusion, or ossicular chain impairment.
(iii) Dr Fagan assessed all bilateral losses from 1000 to 4000 Hz as being due to industrial deafness. I disagree with his assessment because his audiogram like mine shows a significant mixed hearing loss in the left ear, as all frequencies except at 1000 Hz in the left ear show a 10 dB air-bone gap, whereas in the right ear air and bone conduction thresholds are the same at all frequencies. In my opinion Dr Fagan erred in including the conductive hearing loss in the left ear in his assessment of industrial deafness, because as noted above occupational noise exposure does not cause conductive hearing loss.
(iv) Dr Howison found slightly more sensitive thresholds to those shown on my audiogram, and also found a greater loss in the left ear. He states that he found a bilateral sensorineural hearing loss, and I note that the high tone thresholds shown in his audiogram table are worse in the left ear. I also note that he has not provided the thresholds he obtained on bone conduction testing, yet he has reported a bilateral sensorineural hearing loss. He has assessed the bilateral losses at 2000 Hz and above as being due to industrial deafness, yet provides no comment on the relevance of the asymmetrical hearing loss shown on his audiogram.
(v) As noted above I was satisfied that I obtained reliable and repeatable thresholds during my testing and I therefore prefer my audiogram and assessment.
(vi) Like Dr Howison and Dr Fagan I obtained a history of severe tinnitus. Based upon the history that I obtained and its effect on activities of daily living I assessed the tinnitus at 2% impairment.
In making that assessment I have taken account of the following matters:-
My history of occupational noise exposure and other factors in the history pertaining to causation of hearing loss, my findings on clinical examination, my audiological findings, and a consideration of other medical reports and audiograms.”
The MA found hearing loss of unknown origin in the left ear which was unrelated to occupational noise exposure and made a deduction under s 323 for this with the following explanation:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:-
·Asymmetrical mixed hearing loss involving the left ear of unknown cause and unrelated to occupational noise exposure.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:-
i.I have taken into account the history of occupational noise exposure and the audiometric profile shown in my audiogram in arriving at my opinion regarding the amount of deductible hearing loss that is unrelated to industrial deafness.
ii.In my opinion the deductible proportion is 4.1% binaural hearing loss for the reasons given above.”
The appellant complains on appeal that the MA did not explain why he included the losses below 2000Hz. The appellant submitted that the inclusion of the losses at low frequencies required the MA to give a specific explanation for why they were being included.
The Appeal Panel can discern no error in the assessment of the MA. His job was to assess the impairment as a result of occupational noise exposure as at the deemed date of injury referred to him being 1 January 2006. In so doing he was required to consider the nature and extent of the hearing loss including considering the nature and duration of occupational noise exposure. The Appeal Panel notes that there was occupational noise exposure spanning some 30 years. The MA has clearly explained his assessment that the left ear has hearing loss due to both occupational noise exposure and an unknown cause unrelated to occupational noise exposure. He explains the calculation of the deduction to take this into account. The MA’s assessment otherwise includes all frequencies from 0.5 to 4 Hz. This is entirely consistent with the losses at these frequencies following the typical pattern of occupational noise induced hearing loss due to the nature and duration being some 30 years, of the workers occupational noise exposure. That is, considering the nature and duration of his occupational noise exposure and the nature and extent of all the hearing losses in the left ear at 0.5-4 kHz, it was open to the MA to find that all of the losses including at the low frequencies are compatible with noise induced hearing loss. This is because industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000 Hz as has occurred here. That is, in cases of industrial deafness the hearing loss at 2000 Hz and below would be expected to be less severe than the losses at 3000 Hz and 4000 Hz, and this is the case in the MA’s audiogram after some 30 years of occupational noise exposure. The audiogram obtained by the MA is entirely consistent with the nature and extent of the respondent worker’s occupational noise exposure. The MA explained that his assessment was based upon the history he obtained, the results of his physical examination, and his consideration and assessment of his audiometric findings. When regard is had to the MAC as whole, there is no error to be found in the MA’s assessment or his reasons.
For these reasons, the Appeal Panel can discern no error in the assessment by the MA and the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 May 2002 should be confirmed.
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