Ferguson v The University of Sydney

[2023] NSWPICMP 664

DETERMINATION OF APPEAL PANEL
CITATION:	Ferguson v The University of Sydney [2023] NSWPICMP 664
APPELLANT:	Dallas William Ferguson
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Henley Harrison
DATE OF DECISION:	13 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal against Medical Assessor’s (MA) assessment of binaural hearing loss (in accordance with the Table of Disabilities applicable to the assessment of compensation claims pursuant to section 66 of the Workers Compensation Act 1987 for injuries occurring prior to 1 January 2002) without including the relevant hearing losses at frequencies below 1.5 KHzs; demonstrable error alleged; error found on the basis that the MA failed to adequately explain his actual path of reasoning in coming to his conclusion regarding not including the hearing losses at frequencies below 1.5 KHz in his assessment; Queanbeyan Racing Club Ltd v Burton, Shone v Country Energy, McNaughton v Engineering & Business Services (NSW) Pty Limited, Campbelltown City Council v Vegan, Wingfoot Australia Partners Pty Limited v Kocak, and De Nobrega v Buena Bela Floor & Wall Tiling considered; Appeal Panel determines that a re-examination of the appellant is not required and it accepts, on the evidence, that the appellant’s hearing losses at frequencies below 1.5 KHz should be included in the assessment of his occupational hearing loss; Appeal Panel accordingly amends the MA’s audiogram (in relation to which no complaint was made by the parties) calculations but finds that once presbycusis is taken into account, the inclusion of the appellant’s hearing losses at frequencies below 1.5 KHz does not increase the final level of his occupational binaural hearing loss; Held – Medical Assessment Certificate revoked and new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 7 September 2023, Dallas William Ferguson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the appeal). The medical dispute subject to the decision had been assessed by Medical Assessor Sylvester Valentine Fernandes (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 10 August 2023.

2. 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 MAC contains a demonstrable error.

3. The President’s delegate is satisfied that, solely on the face of the appeal, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and conducted a review of the original medical assessment, but limited to the grounds of appeal in relation to which the appeal is made.

4. The Appeal Panel is required to only address the subject matter of the grounds of appeal. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 (Burton), Basten JA stated (at [35]):

   “The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”

5. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 set out the practice and procedure in relation to the 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.

6. 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.

7. The assessment of the appellant’s loss required in the MAC is to be an assessment of his binaural hearing loss in accordance with the Table of Disabilities applicable to the assessment of compensation claims pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for injuries occurring prior to 1 January 2002. In this regard, there is no dispute that the deemed date applicable to the appellant’s injury is 30 November 1994.

RELEVANT FACTUAL BACKGROUND

1. The appellant is 83-years-old, and was employed by the New South Wales Department of Education (the respondent) between 15 October 1957 and 30 November 1994. He worked at the University of Sydney in its Department of Chemical Engineering.

2. In his statement dated 29 May 2023 (at page 1 of his Application to Resolve a Dispute (ARD)), he describes his employment as follows:

   “During my employment, my duties included conducting routine repair and maintenance of research equipment used by the department. I was also responsible for the planning and construction of new research equipment…I was exposed to noise from lathes, grinders, hammering, saws, steam boilers, compressors and extractor fans…Between 15 October 1957 and approx. 1980, I worked for 7 hours per shift, 5 shifts per week and was exposed to noise for up to 3 hours per shift…Between approx. 1980 until the cessation of my employment on 30 November 1994, I worked 7 hours and 40 minutes per shift, 9 shifts per fortnight, and was exposed to noise for up to 3.5 hours per shift.”

3. He says in his statement that he did not have any noisy hobbies, had not served in any military force, had not been exposed to noise from firearms, and had not suffered any infections. He also says that he has been aware of difficulties with his hearing for many years, and he explains how those difficulties have affected his social and familial relationships.

4. His hearing loss was assessed by Dr Macarthur and the doctor has provided a report dated 6 December 2022 (at page 13 of the ARD).

5. The doctor’s conclusion was:

   “Mr Ferguson is suffering from a bilateral mid to high tone sensori-neural deafness, due in my opinion to exposure to loud noise in his work as a Senior Technical Officer over a 44 year period…His last noisy employer was the University of Sydney. In my opinion, his employment there was employment of the nature to which the tendencies, incidents and characteristics of his employment have been such as to give rise to a real risk of boilermaker’s deafness or deafness of similar origin”.

6. After allowing for presbycusis due to the appellant's age, the doctor found the appellant to be suffering 9.3% binaural hearing loss. The doctor used findings as to the appellant’s hearing loss at all frequencies (0.5, 1, 1.5, 2, 3, and 4 KHz) in order to calculate his occupational binaural hearing loss. He did not restrict his calculations by disregarding the appellant’s hearing loss at frequencies below 1.5 KHz.

7. By letter dated 21 December 2022 (at page 11 of the ARD), the appellant formally claimed lump sum compensation from the respondent in relation to his binaural hearing loss, pursuant to s 66 of the 1987 Act, relying upon the assessment of Dr Macarthur.

8. The respondent arranged for the appellant to be assessed by Dr Howison, and a report dated 17 March 2023 was prepared by that doctor. The report can be found at page 5 of the respondent’s Reply (Reply). After allowing for presbycusis due to the appellant’s age, the doctor found the appellant to be suffering 1.4% binaural hearing loss, although he agreed:

   “Mr Ferguson’s hearing loss apart from the effects of presbycusis is due to his employment with Sydney University where he was exposed to unacceptable noise levels as a Senior Technical Officer”.

   The doctor used findings as to the appellant’s hearing loss at all frequencies (0.5, 1, 1.5, 2, 3, and 4 KHz) in order to calculate his occupational binaural hearing loss. He did not restrict his calculations by disregarding the appellant’s hearing loss at frequencies below 1.5 KHz. He opined:

   “There is no pre-existing or non-occupational hearing impairment apart from the effects of presbycusis”.

9. The appellant’s claim pursuant to s 66 of the 1987 Act was not able to be resolved between the parties, and as a result, the appellant lodged his ARD with the Personal Injury Commission (Commission). Following the Reply being lodged, the assessment of the claim was referred to the Medical Assessor by the Commission on 7 July 2023. The Medical Assessor was asked to assess the level of the appellant’s binaural hearing loss, as required in accordance with paragraph 7 above.

PRELIMINARY REVIEW

1. The Appeal Panel has conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.

2. 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 because it possessed sufficient evidence within the documentary evidence before it in order to be able to determine the appeal.

3. It is relevant to note in this regard that the appellant specifically submitted that the appeal “can be considered on the papers and a re-examination is not required”.

EVIDENCE

Documentary evidence

1. 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:

   (a)    the ARD and attached documents;

   (b)    the Reply and attached documents, and

   (c)    the referral from the Commission President’s delegate to the Medical Assessor dated 7 July 2023.

Medical Assessment Certificate

1. The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

2. It is unnecessary to refer to the MAC in detail given the limited nature of this appeal.

3. The Medical Assessor took a history of the appellant’s noise exposure while employed by the respondent, as well as the appellant’s lack of noise exposure otherwise, consistent with the evidence and the appellant’s statement (see paragraphs 9-10 above). He diagnosed the appellant with:

   (a)    “noise induced hearing loss in the upper middle and treble frequencies”;

   (b)    “an excess loss of uncertain origin (non occupational) in the base and lower middle frequencies”, and

   (c)    “age-related hearing loss”.

4. In relation to the finding of non-occupational hearing loss, the Medical Assessor explained:

   “There are many possible causes of non-occupational hearing loss. The validity of the finding of a non-occupational contribution to a hearing loss is not conditional on the identification of the medical aetiology thereof, be that identification precise or otherwise. Nor is it necessarily clinically difficult to assess that a component of all of a hearing loss (including where it may be of uncertain medical aetiology or deafness due to an unknown cause or causes) is non-occupational. This depends on the circumstances of the particular case. Also, in hearing loss cases the deduction is not for pre-existing conditions, but it is for hearing loss not due to noisy employment. It can usually be calculated exactly and the 10% deduction used in other compensation claims is not often needed. Thus, in this case, there is no necessity to explain the cause of the low tone hearing”.

5. The Medical Assessor carried out an audiogram upon the appellant, in relation to which he advised:

   “He responded well to the subjective aspects of the audiogram carried out in accordance with the Workcover Guides Chap 9.8 p 43. An accurate hearing test was achieved, for there was very good intratest reliability”.

   He notes the findings from the audiogram in a table, commencing at the foot of page 5 of the MAC.

6. Importantly, in assessing the appellant’s occupational hearing loss based upon the audiogram, the Medical Assessor advises:

   “The frequencies below 1.5 KHz are not included in the calculation because…the historical noise exposure is not ‘suitable or sufficient’ to cause a noise induced hearing loss at these frequencies because the cumulative immission [emphasis in original] levels are not high enough to involve the lower frequencies. In other words, the facts and circumstances on which this conclusion is reached, is succinctly evident from the exposure history…Hence after consideration of the nature and duration (immission [emphasis in original] levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 1.5, 2, 3 and 4 KHz are caused by his occupational noise exposure”.

7. The Medical Assessor then references the decision in Shone v Country Energy [2007] NSWWCCMA 18 (Shone), and opines that the decision:

   “…is perennially implored as authority for inclusion of the lower frequencies, in an effort to ascribe to Shone a ‘regulatory science’ status. It is important to understand that it is not possible to impart the ‘bright-line’ of certainty of law to an essentially fluid subject (that is a function of several variables) requiring a clinical judgement (see also Richardson [2013] NSWWCCMA 56) and fundamentally requires each case to be judged on its own merits”.

8. As a result of his opinion, when assessing the appellant’s binaural hearing loss in the MAC, the Medical Assessor deducts:

   (a)    1.04% loss in relation to the hearing loss that he found at 0.5 and 1 KHz, and

   (b)    9.94% loss in relation to presbycusis.

9. The Medical Assessor finds a total binaural hearing loss of 16%, but issues the MAC stating a total percentage loss for occupational noise exposure of 5.02%.

SUBMISSIONS

1. The appellant made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. The only finding by the Medical Assessor challenged by the appellant is clearly stated in the submissions as:

   “The Appellant submits that the MAC contains the following demonstrable error due to the MA incorrectly finding that Appellants hearing loss suffered below the 1500 Hz frequency is not caused by noise exposure”.

3. The appellant refers to both Dr Macarthur and Dr Howison including the appellant’s hearing loss below this frequency in their calculations as to his occupational hearing loss.

4. He submits that the Medical Assessor (in determining that his occupational noise exposure was not suitable or sufficient to cause hearing loss in the 0.5-1 KHz range) had made a conclusion without sufficient reasoning. He specifically refers to McNaughton v Engineering & Business Services (NSW) Pty Limited [2021] NSWPICMP 159 (McNaughton), in which an appeal panel was required to deal with an appeal involving similar facts and circumstances to the appellant’s. That appeal was also in relation to a MAC issued by Medical Assessor Sylvester Valentine Fernandes.

5. The appellant summarises:

   “The appeal in these proceedings arises on the same basis in McNaughton; the facts and circumstances on which the conclusion was reached not apparent or in any sufficient or acceptable way. This is required particularly where the opinion is inconsistent with that of the medico-legal experts and has a direct bearing on the entitlements (or lack there of as the case may be) that result”.

6. The respondent did not make written submissions. In relation to the appeal, it simply sent a letter to the Commission by email on 28 September 2023 advising that it did not oppose the appeal, and submitting that the appellant should be re-examined by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. Further, in Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43, the High Court (in considering the reasons required from a Medical Panel set up pursuant to the Victorian Accident Compensation Act 1985), said [at 55]:

   “The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”

3. In McNaughton and in De Nobrega v Buena Bela Floor & Wall Tiling [2016] NSWWCCMA 7, it was found that a similar requirement to give adequate reasons applied to medical assessors of the Commission’s. The Appeal Panel agrees in this regard.

4. The facts and circumstances in McNaughton seem to be very similar to those in this appeal. Mr McNaughton had worked in noisy employment for 53 years, but the Medical Assessor refused to incorporate his hearing loss at 0.5 KHz in his assessment of occupational hearing loss. It would seem that the MAC in McNaughton contained some (according to passages from it quoted in the Appeal Panel decision) identical wording to that in the MAC issued by the Medical Assessor in the appellant’s claim.

5. In McNaughton, the Appeal Panel concluded:

   “48.   The MA sought to explain his reasons by dealing with the causes of non-occupational hearing loss. Whilst he stated that it was not necessary for him to explain the cause of Mr McNaughton’s low tone hearing loss, that did not exempt him from explaining why the loss was categorised as being non-occupational in the particular circumstances of the case he was dealing with.

   49.    Whilst the respondent is correct to argue that clinical judgement is required to assess the intensity and duration of noise exposure, each case requires an explanation where more than one conclusion is open. That explanation does not have to be extensive or detailed but as a medical professional reaching a professional judgement, the MA was aware that the circumstances he was assessing were consistent with the possibility that such a long and intense exposure to significant industrial noise had in similar circumstances been found to cause hearing loss in the low frequencies. The MA was aware because he referred to the leading authority on this aspect of hearing loss cases, Shone, in his footnote. The footnote acknowledged, after some interesting quasi-legal observations, that the question of the inclusion of the low frequencies ‘fundamentally requires each case to be judged on its merits.’

   53.    Further, the reasoning by the MA that the historical noise exposure was not ‘suitable or sufficient’ to cause a noise induced hearing loss at this frequency, was not exposed. The statement that the ‘cumulative immission levels are not high enough to involve these frequencies’ is a simply a conclusion. The facts and circumstances on which the conclusion was reached not apparent.”

6. The above criticisms of the Medical Assessor in McNaughton are equally applicable to the MAC which he issued in the appellant’s claim. While he attempted to explain the possible causes of non-occupational hearing loss (see paragraph 24 above), he did not explain why he found a proportion of the appellant’s particular hearing loss to be non-occupational.

7. Also, when referencing Shone, he acknowledged (see paragraph 27 above) that an individual case needed to be “judged on its merits”, but he failed to assess the relevance of the appellant’s long and consistent history of intense occupational noise exposure, especially in circumstances where he was aware from Shone that such a history had often been found to be consistent with hearing loss at frequencies below 1.5 KHz (as indeed Drs Macarthur and Howison had found in the appellant’s claim – see paragraphs 13 and 15 above).

1. Further, the Appeal Panel refers to his opinion expressed at paragraph 26 above. The Appeal Panel considers this paragraph to be a conclusion without reasoning as to why the appellant’s occupational noise exposure was not ‘suitable or sufficient’ to be responsible for his hearing loss at frequencies below 1.5 KHz.

2. In all the circumstances, including the respondent not opposing the appeal, the Appeal Panel finds that the Medical Assessor made a demonstrable error in failing to adequately explain his actual path of reasoning in coming to the conclusion that the appellant’s hearing loss at frequencies below 1.5 KHz should not be included in the assessment of his occupational hearing loss.

3. In accordance with the appellant’s submissions, the Appeal Panel does not see the need for the appellant to be re-examined.

4. Having regard to the appellant’s uncontradicted evidence of long, intense, and consistent noise exposure, as well as the opinions of Drs Macarthur and Howison (see paragraphs 13 and 15 above), the Appeal Panel accepts that the appellant’s hearing loss at frequencies below 1.5 KHz should be included in the assessment of his occupational hearing loss.

5. Neither party has complained about the accuracy of the audiogram carried out by the Medical Assessor. In accordance with Burton, the Appeal Panel will therefore be accepting the findings in the audiogram, save for including (in the table noting its findings – see paragraph 25 above) calculations as to the after presbycusis hearing losses in each ear at the frequencies below 1.5 KHz.

6. Once these calculations are included in the table, it will read as follows:

Left Ear				Right Ear
Before Pres		After Pres dedn 16.5 dB HL		Before Pres			After Pres dedn 16.5 dB HL
dB HL	PLH	dB HL	PLH		dB HL	PLH		dB HL	PLH
0.5 KHz	15	0	0	0		20	0.7		3.5	0
1 KHz	20	0.9	3.5	0		20	0.9		3.5	0
1.5 KHz	25	1.5	8.5	0		30	2.6		13.5	0
2 KHz	35	3.1	18.5	0.1		30	2.0		13.5	0
3 KHz	45	3.7	28.5	1.1		50	4.5		33.3	1.8
4 KHz	65	6.5	48.5	3.7		65	6.5		48.5	3.7
Total	15.7	4.9		17.2		5.5

1. As can be seen from the completed table above, once presbycusis is taken into account, the inclusion of the appellant’s hearing loss at the 0.5 and 1 KHz frequencies does not increase the final level of his occupational binaural hearing loss.

2. This is entirely consistent with the tables prepared by both Drs Macarthur and Howison regarding their audiogram findings. See page 16 of the ARD in relation to Dr MacArthur and page 7 of the Reply in relation to Dr Howison. Neither doctor considered the applicant’s hearing loss at the 0.5 and 1 KHz frequencies to increase the final level of his occupational binaural hearing loss.

3. The level of the appellant’s occupational binaural hearing loss will therefore remain at 5.02%. His total hearing loss is 16%, but the Appeal Panel finds the proportion of that total hearing loss due to presbycusis as being 10.98%.

4. As the Appeal Panel for the reasons above has found that the Medical Assessor made a demonstrable error, it has determined that the MAC issued on 10 August 2023 should be revoked, and a new MAC should be issued. The new MAC maintains the Medical Assessor’s unchallenged audiogram findings; but it substitutes the calculations of the Appeal Panel in relation to the appellant’s occupational binaural hearing loss, once his hearing loss at the 0.5 and 1 KHz frequencies are taken into account, but also importantly once presbycusis is taken into account regarding the hearing loss at those frequencies. The new MAC is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received before 1 January 2002

Matter Number:	W4155/23
Applicant:	Dallas William Ferguson
Respondent:	Secretary, Department of Education

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Sylvester Valentine Fernandes and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002

Table 1 – methods of assessment - Table of Disabilities and 1976 CAL Tables

Body Part (as per Table of Disabilities) Industrial Deafness	Notional date of injury	Percentage loss of BHI (total BHI, as at the date of examination, from all causes - noise, injuries, conditions and abnormalities)	Less proportion due to pre-existing injury abnormality or condition (but excluding previous claims for industrial deafness and presbycusis)	Less proportion due to Presbycusis	Total percentage loss of Industrial Deafness (including all previous claims (as per Table of Disabilities)
Hearing loss percentages	30 November 1994	16.0%	10.98%	5.02%