Fairweather v Donau Pty Ltd
[2024] NSWPICMP 361
•5 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Fairweather v Donau Pty Ltd [2024] NSWPICMP 361 |
| APPELLANT: | Jason Fairweather |
| RESPONDENT: | Donau Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Robert Payten |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 5 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of binaural hearing impairment; whether MA erred by not applying section 323; Held – section 323 modified in this branch of medical science; section 323(4) authorises Guidelines to make provision regarding deductions under the section; chapter 9.4 provides for deductions to be made in hearing impairment cases for non-work-related conditions; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 January 2024 Jason Fairweather, 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 5 December 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 26 October 2023 an amended referral was made for an assessment of whole person impairment caused by loss of hearing. Mr Fairweather had been exposed to loud all through his working life and had difficulty hearing since the 1990s, during which time he received a settlement for industrial deafness.
The Medical Assessor assessed 13.9 BHI which converted to 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.
The appellant did not seek re-examination by a Medical Assessor who is a member of the Appeal Panel. Such a re-examination was not indicated as no error was established in the MAC.
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.
Medical Assessment Certificate
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 which 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 MAC
The Medical Assessor took a history of Mr Fairweather’s exposure to loud noise all of his working life. He has been a boilermaker or steel fabricator except since 2022 when he was working for a sandblasting company as supervisor.
The Medical Assessor confirmed the contents of Mr Fairweather’s statement. The Medical Assessor said at [6]:
“Audiometry was performed on the day of assessment in a quiet environment in a suitable sound proofed booth using a calibrated audiometer. The audiogram was performed by my audiologist, Mrs Monica Summers a qualified audiologist whose qualifications are BA DipEd, DipAud, MAud, MAudSA (CCP) Clinical Audiologist. Prior to the audiogram being performed, I ascertained that the worker had not been exposed to loud noise in the last 16 hours. The audiogram showed a bilateral, fairly equal sensorineural deafness. The total binaural hearing impairment (BHI) derived from this audiogram is 56.1%. A copy of the audiogram accompanies this report. However not all of this deafness is occupational deafness (‘industrial deafness;).”
In his summary the Medical Assessor stated that Mr Fairweather suffered from bilateral sensori-neural deafness partly due to occupational deafness and partly due to another unknown cause or causes probably at least partly constitutional. The Medical Assessor said:[1]
“The history and examination are consistent with a diagnosis of industrial deafness but the audiogram is not consistent with all of the deafness being industrial deafness (an accurate audiogram was easily obtained).”
[1] Appeal papers page 19.
At [9] the Medical Assessor noted that Mr Fairweather’s employment with the respondent had the tendencies, incidents and characteristic such as to pose a real risk of damaging his hearing. The history, the Medical Assessor said, was of “significant occupational noise exposure.”
At [10] the Medical Assessor gave his reasons for his eventual assessment. He repeated that the history and the examination were consistent with the diagnosis of occupational noise exposure, but the results of the audiogram indicated that occupational noise exposure was not the only diagnosis.
The Medical Assessor explained that in the case of occupational hearing loss the lower frequencies (those below 2000 cps) are usually preserved and the hearing loss increases continually in the affected frequencies until at least 3000 cps. It followed, the Medical Assessor explained, that the frequency at 2000 cps should be less affected than at 3000 cps. However, the audiogram demonstrated that at 2000 cps the hearing was more affected than at 3000 cps.
The Medical Assessor said:[2]
“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 an audiogram of established occupational deafness, the lower frequencies (those below 2000 cps) are usually preserved and in the affected frequencies, the hearing loss increases continually and increasingly with increase in frequency until at least 3000 cps so that the frequency 2000 cycles per second should be considerably less affected than 3000 cps. That is not the case here where
2000 cps is affected more than 3000 cps. So the hearing loss below 3000 cps is not consistent with noise induced hearing loss. So despite the long history of exposure to extremely loud noise, I have apportioned the occupational hearing loss to the frequencies 3000 cps and above where it is consistent with the diagnosis. ….The rest of the hearing loss is due to an unknown cause or causes, probably at least partly constitutional. The profile of the audiogram which shows most loss in the mid frequencies is suggestive of what is known as a mid frequency (or cookie bite) hearing loss with additional noise induced hearing loss affecting the higher frequencies. A mid frequency hearing loss is a well recognized constitutional condition which is not work related.”
[2] Appeal papers page 20.
In commenting on the reports of the other medical specialists at [10c] the Medical Assessor said:[3]
“Both other doctors have similar audiograms to mine but have made differing frequency apportionments. I have given my reasons for my differing opinion in this regard. In my opinion they should both have made the same frequency apportionment as did I. ….”
[3] Appeal papers page 21.
At paragraph [11] of the MAC is another templated question directed in its terms to the application of s 323 of the 1998 Act. That is to say, it speaks of impairment due to previous injury or pre-existing condition or abnormality. The Medical Assessor has described the “previous injuries, pre-existing conditions or abnormalities”, as “non-related hearing loss.” The Medical Assessor indicated that the non-related hearing loss was 42.2% BHI (binaural hearing loss) “because that is the extent of non-related loss”.
The Medical Assessor’s Table 4 assessment certificate demonstrated that the Medical Assessor had not allowed the binaural hearing impairment from the frequency from 500 Hz to 2000Hz, as being caused by occupational BHI. The total BHI he calculated as 56.1%, leaving an occupational binaural hearing impairment of 13.9%, which he converted under Table 9.1 of the Guides to 7% WPI.[4]
SUBMISSIONS
[4] Appeal papers page 23.
The appellant
Mr Fairweather reviewed his work history and stated that he had made a successful industrial deafness claim in 1989 calculated on a 3.2% binaural hearing loss. He also received, in 1991, an amount for an injury which was described as “ear (external ear, ear lobe), middle ear, nerves.”
The sole ground of appeal was that the Medical Assessor failed to correctly apply the provisions of s 323 of the 1998 Act, and had therefore applied incorrect criteria.
Mr Fairweather submitted that “it is clear” that the deduction was intended to be made pursuant to s 323(1) of the 1998 Act. We were referred “page 5 subsection (1)”. We assume that the appellant intended to refer to paragraph (or subsection) “11”.
Mr Fairweather submitted that the Medical Assessor had failed to consider the provisions of s 323(2) and accordingly whether the statutory presumption of a 10% deduction ought to apply.
Mr Fairweather noted the reasons given for the deduction by the Medical Assessor, but submitted that such an approach was “arbitrary”. It was submitted that whilst the reasoning by the Medical Assessor might warrant a deduction from the loss of hearing in the frequencies 2000 cps and below, his reasons on their face did not justify their exclusion. The reasoning advanced by the Medical Assessor was flawed. Mr Fairweather argued, because it probably excluded a component of hearing loss that was work related. Thus, it was argued, to the extent that the Medical Assessor’s reasoning could not be reconciled with the arbitrary deduction, a demonstrable error had also occurred.
The proper application of s 323(2) would result in a 10% deduction from the total binaural hearing loss which had been estimated at 56.1%. This would result in a finding that the hearing loss was 35.6% or 18% WPI.
The appellant kindly supplied a chart based on Table 4 chart in the MAC,[5] but It seems that alternative approaches were advocated. The first was that the Medical Assessor consider a proportion of BHI in each frequency below 2000 cps as an occupational BHI of 6.4%, except for the 500 cps frequency, which was suggested as 2.5%. There was no rationale expressed as to why these occupational BHI findings should be made, but the result, it was submitted, would result in a total occupational BHI of 35.6%, which when subtracted from the total BHI of 56.1%, would have resulted in a finding of 18% WPI.
[5][5] At Appeal papers page 23
The alternative suggested was simply that the total BHI have subtracted from it 10% which would have yielded an entitlement of 50.49% occupational BHI, which would have yielded 25% WPI.
The respondent
The respondent sought to support the reasons of the Medical Assessor and relied on the explanation given at [10a] of the MAC.
DISCUSSION
The submissions by the appellant were quite compelling in their logic, save for one fundamental difficulty: The submissions were made on an assumption that the Medical Assessor failed to correctly apply the provisions of s 323 of the 1998 Act.
Section 68B(4) of the 1987 Act provides:
“When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), s 323 of the 1998 Act applies to that compensation subject to the following-
(a)There is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the workers employment in previous relevant employment (as defined in paragraph (b)) except for any such proportion for which compensation under this Division (as in force at the time) or section 16 of the former Act has been paid or is payable.
(b)For the purposes of paragraph (a)
‘previous relevant employment’ is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).”
Section 323 provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note: So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
Note : Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
Chapter 9.4 of the Guides 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.”
It can be seen that s 323(4) provides that the Guides may make provision “for or with respect to the determination of the deduction required by this section.”
Chapter 9.4 of the Guides is the relevant provision, and it does not speak in terms of previous injury, pre-existing condition or abnormality. The deduction in hearing loss cases is accordingly to be assessed using medical judgement on the part of the examining Medical Specialist by considering the level of non-work-related conditions in determining the work-related hearing loss with the caveat that the Medical Assessor is required to record in his report the deductions he made for the non-work-related conditions.
Section 323 (2) does not apply if it is at odds with the medical evidence and s 323 (3) provides that the medical evidence is that which is accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
In matters of occupational noise induced hearing loss of gradual process the Medical Assessor considers the medical history including the nature and duration of occupational noise exposure and physical examination including the nature and extent of all the hearing losses on audiogram. The Appeal Panel notes that in this matter the level of hearing losses on the Medical Assessor’s audiogram at 2000 Hz are greater that those at 3000 Hz and the Appeal Panel finds it was open to the Medical Assessor on the balance of probabilities to find the hearing losses below 3000 Hz are non-work-related. Clearly this is the medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter and the Appeal Panel can find no error. And the Appeal Panel notes that the level of hearing losses at 1000, 1500 and 2000 Hz are all greater than or equal to those at 3000 Hz. Again the Appeal Panel find it was open to the Medical Assessor on the balance of probabilities to find the hearing losses below 3000 Hz are non-work-related.
Where, as in this case, a significant deviation is demonstrated from the usual appearance typical of occupational noise induced hearing loss on the profile of the audiogram caused by exposure to Mr Fairweather’s industrial noise of 36 years duration, the cause of that deviation is not always apparent, as again was the case with Mr Fairweather’s hearing loss. While the etiology of the levels of non-occupational hearing loss may be unknown, it can be confidently judged by the assessor on the balance of probabilities as not due to occupational noise exposure because the appearance of the profile of the audiogram is inconsistent with that diagnosis.
Further, the audiograms themselves give a reliable indication of the extent of the contribution of the non-work-related condition to the overall binaural hearing impairment. It is not correct, with respect, to simply rely on the provisions of s 323 (2), as the deduction is neither difficult nor costly to determine and is at odds with the medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter. The Appeal Panel notes that in this matter the level of hearing losses on the Medical Assessor’s audiogram at 1000, 1500 and 2000 Hz are all greater than or equal to those at 3000 Hz and on the balance of probabilities it was open to the Medical Assessor to deduct hearing losses below 3000 Hz. There has been no challenge to the interpretation made by the Medical Assessor as to the effect of the unusual, “cookie bite,” profile of the audiogram, and we confirm that his interpretation of its effect justifies the deductions made. The Appeal Panel finds the Medical Assessor correctly applied s 323 of the Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 December 2023 should be confirmed.
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