Ghossayn Group Pty Ltd v Warren

Case •

[2021] NSWPICMP 6

•

5 March 2021
DETERMINATION OF APPEAL PANEL
CITATION: Ghossayn Group Pty Ltd v Warren [2021] NSWPICMP 6
APPELLANT: Ghossayn Group Pty Ltd
RESPONDENT: William Alexander Warren
APPEAL PANEL: Marshal Douglas
Dr Brian Williams
Dr Robert Payten
DATE OF DECISION: 5 March 2021
CATCHWORDS: WORKERS COMPENSATION- respondent worker had been exposed to hazardous occupational noise in employment for around 50 years including 20 years in employment in NZ before being commencing employment in NSW; AMS did not make any deduction under section 323 for previous injury or pre-existing condition or abnormality; appellant submitted AMS erred by not doing so; Held- Appeal Panel agreed finding the evidence with respect to the nature and duration of the occupational noise to which the respondent was exposed in NZ established that the respondent had a damaged and therefore abnormal cochlea at the time he commenced NSW employment that would have caused him hearing loss at that time that contributes to his present hearing loss;  AMS erred by not making a deduction under section 323;  Appeal Panel revoked MAC and reassessed medical dispute, but used the AMS’s audiometric measurements for the air conduction, rather than his measurements for bone conduction, which the AMS had used to assess respondent’s hearing impairment; Appeal Panel considered air conduction measurements more reliable.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 6 November 2020 Ghossayn Group Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Thandavan Raj, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 9 October 2020.

  2. The Appeal Panel observes that on 28 February 2021 the Workers Compensation Commission (WCC) ceased to be, and that on 1 March 2021 the Personal Injury Commission was established. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor and an Arbitrator is now known as a Member.  Given that at the time Dr Thandavan Raj issued the MAC he was an Approved Medical Specialist of the WCC, the Appeal Panel shall use the acronym AMS in these reasons refer to him.

  3. 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.

  4. The Registrar 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.

  5. The WorkCover Medical Assessment Guidelines set out the practice and procedure in relation to the medical appeal process under s328 of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines.

  6. 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).

RELEVANT FACTUAL BACKGROUND

  1. William Alexander Warren (the respondent) was employed by the appellant between 1989 and December 2017 as a machine operator and truck driver.  He was exposed to noise in that employment from jack hammers, drills, hammers, grinders, excavators, machinery, diesel trucks and other noise common in construction sites.

  2. Prior to the respondent commencing his employment with the appellant he also worked over the course of 24 years with other employers, including 20 years between 1965 and 1985 in New Zealand, during which he was exposed to similar noise to that he was exposed whilst working for the appellant.

  3. The respondent’s solicitors arranged for the respondent to be seen by Dr Peter Corlette to assess his occupational hearing loss, tinnitus and his need for hearing aids.  He attended
    Dr Corlette on 11 October 2018.  In a report Dr Corlette provided the respondent’s solicitors, Dr Corlette advised that he had assessed the respondent to have 11% whole person impairment (WPI) due to exposure to noise in his employment from 1965.

  4. The respondent’s solicitors on 3 April 2019 notified the appellant’s insurer that the respondent was making a claim for compensation under s66 of the Workers CompensationAct 1987 (the 1987 Act) for $23,310 for 11% WPI that the respondent claimed had resulted from an injury of hearing loss he had received in his employment with the appellant.

  5. Thereupon, the appellant’s insurer arranged for the respondent to be examined by
    Dr Kenneth Howison, which occurred on 13 May 2019 and following which Dr Howison provided a report to the insurer on 17 May 2019.  In that report, Dr Howison advised that he had assessed the respondent to have “a binaural high tone sensor-neural noise induced hearing loss of 20.9%, which represents a whole person impairment of 11%”.  Dr Howison also advised the insurer that “as a deduction of 10% is indicated for noise exposure outside of NSW, Mr Warren therefore has a binaural high tone sensor-neural noise induced hearing loss of 18.8%, which represents a whole person impairment of 10%”.  In other words,
    Dr Howison expressed his opinion to the insurer in his report that consequent upon the respondent’s exposure to occupational noise in New South Wales, the respondent had a permanent impairment resulting from an injury of hearing loss of 10% WPI.

  6. On 28 May 2019, the insurer notified the respondent under s78 of the 1988 Act that it denied liability to pay him compensation under s66 of the 1987 Act for the permanent impairment he claimed had resulted from his injury of hearing loss. It advised the respondent that it did so because it relied upon Dr Howison’s opinion that his permanent impairment from his injury was 10% WPI, which did not exceed the statutory threshold imposed by s66 for him to be entitled to compensation.

  7. Thereupon, the respondent initiated proceedings in the WCC seeking determination of his disputed claim for compensation.  The WCC referred the matter to arbitrator Mr Brett Bachelor, who on 14 September 2020, with the consent of the parties, remitted the matter of the Registrar to be referred to an approved medical specialist for assessment of whole person impairment as a result of the respondent’s injury of industrial deafness deemed to have happened on 1 December 2017. 

  8. The WCC issued such a referral to the AMS on 28 September 2020, and as mentioned, the AMS provided the MAC in response to that referral on 9 October 2020.

PRELIMINARY REVIEW

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination.  This is because the material before the Appeal Panel is sufficient to enable it to determine the appeal. 

EVIDENCE

  1. The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination. 

MEDICAL ASSESSMENT CERTIFICATE

  1. The AMS set out within part 3 of the MAC the following history that he obtained relating to the respondent’s exposure to occupational noise:

    “Mr. Warren is from New Zealand. He arrived in Australia in 1986. In New Zealand, he worked in the construction industry for 20 years since the age of 16. He was exposed to noise at construction sites and these included jackhammers, saws, compression tools, plant machinery.

    In 1986, Barclays Bros employed him as a Crane Driver. He worked at the construction site and exposed similar construction noise as in New Zealand.

    From around 1989 till he retired in 2017, he was employed by Ghossayn Group as a machine operator and truck driver. As in his previous jobs, he was exposed to noise from jackhammers, plant machinery, saws, and other construction noise. He worked 8-10 hours a day, five days a week. He used earplugs for hearing protection.

    In summary, he was a construction work between 1965 and 2017 for 53 years.”

  2. The AMS noted that the respondent was not aware of any hearing issue on his arrival in Australia and that he only became aware of his hearing loss about 10 to15 years ago.  The AMS noted that the respondent reported that he sometimes suffered from tinnitus, which at times could be loud but when not loud it did not bother him.  The AMS noted that the respondent’s tinnitus did not affect his sleep or his daily activities. 

  3. The AMS obtained audiometric measurements of the respondent’s hearing at frequencies between and including 250 and 8000Hz.  The AMS recorded those measurements in a graph he attached to the MAC and also tabulated his measurements at 500 to 4000 Hz inclusive within table 4 of the MAC.  Within part 5 of the MAC, the AMS made the following remarks and observations regarding his measurements:

    “5.1 He had an audiogram in my surgery today. The audiogram shows asymmetrical hearing loss worse on the left. On the right, the air and bone thresholds are somewhat similar, the thresholds sloping from 55dB at 500Hz to 60-70dB at 3000-4000Hz. On the left, the conduction thresholds were between 85-90dB at all frequencies. Bone thresholds on this side was the same as the right, though masking could not be done, and one assumes he heard ‘crossover’ sounds on the right side.

    5.2 Mr. Warren’s audiogram shows severe losses in the lower frequencies, greater than one would expect in industrial deafness. There is no doubt that another pathology is in play.

    5.3 The severe loss at 1500Hz, greater than that at 2000Hz, is also not consistent with industrial deafness.”

  4. The AMS used the measurements he obtained from bone conduction to assess the respondent’s hearing impairment due to occupational noise.  The AMS noted he had measured the respondent to have a greater loss of hearing in the respondent’s left ear than in the respondent’s right ear, and he considered that to the extent the respondent’s left ear hearing loss was greater than his right ear loss it was not related to occupational noise.  The AMS also considered that the respondent’s loss of hearing in the frequencies below 2000Hz was also unrelated to occupational noise.  In other words, to assess the respondent’s hearing loss due to occupational noise, the AMS equated the respondent’s losses in the left ear with those in the respondent’s right ear in the frequencies between and including 2000 and 4000Hz and ignored the respondent’s loss below 2000Hz.  The AMS provided this explanation within part 6 of the MAC for his approach:

    “6.1 In the assessment of industrial deafness, the duration, character of exposure, and the audiogram profile are considered. To calculate hearing loss caused by industrial noise, typically, only frequencies of 2000-4000 are included and the lower frequencies are excluded. Depending on the length of exposure severity and character of noise, frequencies below 2000Hz may be included in industrial deafness assessment.
    6.2 I have considered the duration and character of noise exposure. Fifty-three years in the construction industry does expose Mr. Warren to significant noise. As per Shone vs. Country energy, all the frequencies may be applied, but only if the audiogram profile is consistent with industrial deafness, which is not so in this case. Thus, only the losses at 2000-4000Hz are considered as due to industrial deafness.
    6.3. These losses on the right and an equal quantum on the left at 2000-4000Hz are assessed as industrial deafness.
    6.4. Mr. Warren has a 20-year history of exposure to noise in New Zealand. He denies hearing loss on arrival to Australia and there is no hearing test to prove any hearing loss. Even though one would expect such noise exposure in New Zealand to cause industrial deafness, as there is no clinical or audiological evidence of hearing loss, Pereira vs. Simmons’s [sic: Siemens Ltd] principles have been applied. Thus, no deduction has been made for noise exposure outside NSW.
    6.5 I have used bone conduction thresholds as feel they are more representative of cochlear function.”

  5. The Appeal Panel observes that the decision of Shone v Country to which the AMS refers is a decision of a differently constituted Appeal Panel, with the correct citation being Shone v Country Energy [2007] NSWWCCMA 18.  The decision of Pereira v Seimens Ltd is a judicial review decision of Garling J., with the correct citation being Pereira v Seimens Ltd [2015] NSWSC 1133 (Pereira). 

  6. The AMS assessed the respondent to have a binaural hearing impairment of 22.6% due to occupational noise, which accords with 11% WPI.  It is clear from what the AMS said at part 6.4 of the MAC, that he was of the view that the evidence before him, including what the respondent told him at examination, was insufficient to establish that the respondent had suffered a hearing loss prior to the time he started employment in NSW.  The AMS did not make any deduction under s323(1) of the 1998 and hence assessed, and certified, the respondent had 11%WPI from his injury of hearing loss deemed to have happened on 1 December 2017. 

SUBMISSIONS

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

  2. In summary, the appellant submits that the AMS erred by not making any deduction under s323 of the 1988 Act for a pre-existing condition or abnormality despite there being evidence that the respondent had a pre-existing condition that contributed to the respondent’s hearing impairment.  The appellant submits that the AMS found that the respondent’s exposure to noise in New Zealand would have caused industrial deafness and consequently the AMS ought to have found that the respondent had a pre-existing condition that contributed to the respondent’s permanent impairment. The appellant submits that it did not matter that the respondent was unaware of his hearing loss upon arrival in Australia.

  3. In reply, the respondent submits that the AMS considered the issue of whether there should be a deduction under s323 but the AMS found there was no clinical or audiological evidence of hearing loss preceding the commencement of his employment in New South Wales and correctly found that, absent that evidence, he could not make a deduction for noise exposure outside New South Wales.  The respondent submits that was consistent with the decision in Pereira.  The respondent submits that a mere history of noisy employment in heavy industry and being exposed to noise is insufficient to find a prior injury of hearing loss.  The respondent, relying on Cole v Wenaline Pty Ltd[1], submits that assuming or hypothesising that a worker has a prior injury is not sufficient for s323(1) to be engaged.  The respondent submits that the evidence was not sufficient in this case to make a finding of prior injury.

    [1] [2010] NSWSC 78

  4. The respondent further submits that there was no basis for a deduction to be made under s323 due to noise exposure to which he was exposed outside the jurisdiction of New South Wales.  Relying on the Bain v Commissioner for Railways[2], A&G Engineering Pty Ltd v Civitarese[3], Russo v World Services& Construction[4], the respondent submits that the effect of s17 of the 1987 Act is that all of his loss of hearing due to noise exposure, irrespective of whether it occurred outside of work or outside of the jurisdiction of New South Wales, is deemed to be his injury of hearing loss.  The respondent submits that the authorities on which he relies establish that all of his hearing loss that is due to noise, no matter where it occurred, happened in the one blow on 1 December 2017.

    [2] [1963] 81WN (pt 1)(NSW)322

    [3] [1996] 14NSWCCR 158

    [4] [1979] 1NSWLR 330

  5. The respondent, relying upon Hatzimanolous v ANI Corporation[5] (Hatzimanolous) and Da Ros v QantasAirways Corporation[6] (Da Ros), submits that it does not matter that part of his hearing loss may have occurred outside of New South Wales.

FINDINGS AND REASONS

[5] [1992] HCA21

[6] [2010] NSWCA 89

  1. The procedures on appeal are contained in s328 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

  3. The respondent’s submissions to the effect that in a case to which s17 of the 1987 Act applies, there can be no deduction under s323(1) for a prior injury of hearing loss that occurred before the worker commenced noisy employment in NSW or for a condition or abnormality a worker has before he commenced noisy employment in NSW that affects his hearing are wrong, in the Appeal Panel’s view, and the Appeal Panel rejects them.  The authorities upon which the respondent relies in support of that proposition are not germane.  None relate to the circumstance where a worker had a prior exposure to noisy employment preceding commencement of noisy employment in New South Wales.  The authorities upon which the respondent relies establish that s17 is a special provision that creates a series of fictions and presumptions and dispenses the need for a worker to establish causation of an actual hearing loss from work.  That is, a worker does not have to establish that his or her employment with a particular employer brought about or contributed to the worker’s hearing loss.  The authorities establish that the work of section 17 is to determine the identity of the employer who last employed the worker in employment to the nature of which an injury of hearing loss by gradual progression was due.  The authorities upon which the respondent relies provide no assistance in a circumstance, such as this, where it is contended by the appellant prior to the respondent’s arrival and commencement of employment in the jurisdiction of New South Wales, the respondent had a condition or an abnormality relating to his hearing that contributes to the respondent’s present occupational hearing loss. 

  4. Further, Hatzimanolous and Da Ros are entirely distinguishable from the circumstances in this case and also provide no assistance or guidance in terms of how the issue raised in the appellant’s appeal against the MAC is to be determined.  Those cases involved workers who had suffered a frank injury that occurred in the course of the worker’s employment with a single employer and moreover did not involve an issue with respect to how impairment resulting from those frank injuries is to be assessed.

  5. What the respondent contends is inconsistent with the express provisions of the legislation.  Section 68B(4) of the 1987 Act stipulates that when determining the compensation payable by an employer in a case in which s17 applies, s323 of the Act applies to that compensation, other than in the circumstance where in the 5 years before the date of the worker’s injury the worker had been employed by more than one noisy employer.

  6. Further, s2A of the 1987 Act stipulates that the Act is to be construed as if it formed part of the 1998 Act and in the event of any inconsistency between the 1987 Act and the 1998 Act the 1998 Act prevails. Section 66 of the 1987 Act provides a worker with an entitlement to compensation for permanent impairment resulting from an injury so long as the degree of permanent impairment from the injury is more than 10%. Section 65 of the Act stipulates that the degree of permanent impairment resulting from an injury is to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act, which includes s323. In other words, the degree of a worker’s permanent impairment from an injury of hearing loss for the purpose of establishing if and what entitlement the worker has to compensation for the permanent impairment must be assessed by reference to Part 7 of Chapter 7 of 1998 Act, and if therefore a proportion of the worker’s loss due to a condition that the worker had before commencing noisy employment in NSW, s323 requires there be a deduction for that proportion.

  1. Hence, in the Appeal Panel’s view, it is the case that if a worker has a prior injury of hearing loss that occurred outside the jurisdiction of New South Wales or if a worker has a pre-existing condition or abnormality prior to commencing noisy employment in NSW, then potentially s323 may be engaged such that if a proportion of the worker’s permanent impairment is due to that prior injury or pre-existing condition or abnormality then there must, under s323(1), be a deduction for it.

  2. The Appeal Panel considers that the evidence in this matter clearly establishes that the respondent had, as a consequence of his employment in New Zealand, irreversible and permanent damage to his cochlear.  The cochlear is part of the inner ear and is similar in structure to a seashell.  It is approximately 33 millimetres in length.  It has hair cells along its length and damage to those hair cells will cause hearing loss.  The hair cells 10 millimetres along the length of the cochlea from its basal opening are the first to be permanently injured by exposure to hazardous occupational noise of a nature and duration to do so. The first permanent partial hearing loss occurs at frequencies affected in this region of the cochlea namely at 3, 4 and/or 6 kHz even if asymptomatic. And with continuing exposure to that hazardous occupational noise the injury here gradually worsens causing increasing permanent partial hearing loss at these frequencies even if asymptomatic.

  3. The history that Dr Corlette obtained and set out in his report revealed that the respondent’s employment in New Zealand exposed him to noise from chain saws, jack hammers, saws, compressors, power tools, air tools and other work site noise.  Dr Corlette obtained a history that the respondent did not wear hearing protection during the course of his employment in New Zealand.  Dr Corlette noted that the respondent described having to raise his voice in order to communicate at a distance of one metre, which is indicative of ambient noise levels in excess of 90dB.  Dr Corlette also noted that more than two hours exposure to such noise would be hazardous to a person’s hearing, and the medical specialists on the Appeal Panel concur with that.  Dr Corlette noted that the respondent worked 40 hours a week and that he described the noise to which he was exposed in his employment in New Zealand as being constant and continuous for up to 3 to 4 hours a day.

  4. The Appeal Panel considers that the evidence of Dr Corlette establishes that in all likelihood the exposure of the respondent to occupational noise in New Zealand would have caused permanent and irreversible damage to his cochlear such that he would have had permanent partial hearing loss as at 1985 at the frequencies of 3,000 and 4,000 Hz.  That is the case, even though the respondent may not have been aware of it as at 1985.  In other words, the Appeal Panel considers that the respondent had an irreversible and permanently damaged cochlear with permanent partial hearing losses at 3000 and 4000 Hz prior to his commencing his employment in New South Wales and that this pre-existing permanent damage to his cochlear and pre-existing permanent partial hearing loss contributes to his current hearing losses at 3000 and 4000 Hz.

  5. Accordingly, the AMS was wrong, in the Appeal Panel’s view, not to find that the respondent had a pre-existing abnormality that contributed to his hearing impairment and not to make a deduction under s323(1) for the proportion of the respondent’s permanent impairment from his injury of hearing loss that was due to his pre-existing damaged cochlear. 

  6. In the Appeal Panel’s view, the AMS misunderstood the authority of Pereira.  Pereira set out the criteria for making a deduction under s323(1). In Pereira, Garling J. held, in substance, that there must be factual material sufficient to establish a previous hearing loss or a pre-existing condition or abnormality affecting the hearing organs before s323 could be engaged.  As indicated, the Appeal Panel is of the view that in this case the material is such that that conclusion must be drawn and the AMS was wrong not to draw such a conclusion.

  7. The Appeal Panel accordingly finds the MAC contains a demonstrable error.

  8. Given that, the Appeal Panel must revoke the MAC and reassess the medical dispute referred to the AMS for assessment.  In doing that, the Appeal Panel must go beyond the particular error or errors identified by the appellant in its appeal against the MAC and must apply the guidelines to the matter referred for assessment.[7] 

    [7] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 and Roads & Maritime Services v Rodger Wilson [2016] NSWSC 1499

  9. The Appeal Panel notes that the AMS recorded in the MAC that he measured the respondent’s hearing in a sound proof booth with a calibrated audiometer.  The measurements the AMS obtained by doing so, in the Appeal Panel’s view, are reliable and the Appeal Panel shall use those to assess the respondent’s hearing loss and permanent impairment consequent upon that hearing loss.

  10. The Appeal Panel considers however that the measurements the AMS obtained for air conduction should be used, and not his measurements from bone conduction, because the measurements from air conduction are more accurate than the measurements obtained from bone conduction.  This is because the testing from which the measurements are obtained is done directly through the ear canal and ear drum.  That is by virtue of headsets being placed over the ears.  With bone conduction, the testing is done on the skin behind the ear and hence the sound by which the measurements are obtained has to be transmitted through skin and bone and soft tissue and can be variable and, consequently, less reliable. The Appeal Panel also notes there is no conduction hearing loss in the Right ear.

  11. The Appeal Panel considers, for the same reasons the AMS articulated, that the respondent’s loss of hearing in the thresholds below of 2,000Hz are not related to noise.  Further, the asymmetrical loss of hearing in the respondent’s Left ear is also unlikely to be due to noise.  Hence, the losses below 2,000Hz are to be disregarded when assessing the respondent’s loss of hearing due to noise and the respondent’s loss of hearing in the left ear is to be equated with his loss of hearing on air conduction in the right ear at the thresholds of 2,000. 3,000 and 4,000 Hz, when assessing his loss of hearing due to noise.

  12. When that is done the respondent’s binaural hearing impairment at 2,000Hz is 12.7%, at 3,000Hz it is 7.7% and at 4,000Hz it is 7.5%, totalling 27.9%.  There is a deduction of 4.9% for presbyacusis correction, resulting in an adjusted binaural hearing impairment of 23%.  Because the respondent’s tinnitus is not an issue for him most of the time and does not affect his sleeping or daily activities, there is no additional loss to be added for that.  That means therefore that the respondent has a binaural hearing impairment of 23% which equates to 12% WPI.

  13. As indicated above, the Appeal Panel considers that in all likelihood the respondent had a damaged cochlear that affected his hearing at the time he commenced employment in New South Wales.  Accordingly, there must be a deduction under s323(1) for that.  It is simply too difficult to determine the exact extent to which his damaged cochlear in 1986 contributes to his present hearing loss and hence, in accordance with s323(2) of the 1998 Act, the Appeal Panel assumes that the proportion of the respondent’s permanent impairment resulting from his hearing loss due to his damaged cochlear in 1986 is 10%.  Consequently, after the 1/10th deduction the Appeal Panel assesses the respondent has an adjusted binaural hearing loss at 20.7% which translates to 11% WPI (in accordance with 1.26 of the Guidelines and Table 9.1) resulting from his injury of hearing loss. 

  14. The Appeal Panel observes that that coincides with what the AMS had assessed.  Nevertheless, the AMS’s computation of that as detailed in table 4 to the MAC is incorrect and accordingly, the MAC issued on 6 November 2020 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

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 Dr Dr Thandavan Raj and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - calculation of whole person impairment (WPI) for industrial deafness as set out in the Table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-

Date of injury Frequency Hz

Left dB     HL

Air         Bone

 Right dB     HL
Air            Bone

Total % BHI

 Occupational % BHI

1/12/17

 500 70           55 70              55 15.5 0
1000 85           60 65              60 18.6 0
1500 90           65 70              65 16.3 0
2000 90           70 75              70 13.2 12.7
3000 85           75 70              75 8.1 7.7
4000 95           70 70              70 8.0 7.5
79.7 27.9

TOTAL % BHI:     40%WPI   

Less Pre-existing  non-related loss:    51.8%

Less Presbyacusis correction:    4.9%

Add % of severe tinnitus:    0%

Adjusted total % BHI:    23.0%

Resultant total BHI of  23.0  %  =   12 % whole person impairment (Table 9.1)
Proportion of permanent impairment due to pre-existing injury, abnormality or condition:
1/10
Total % WPI resulting from injury: 11% ( in accordance with 1.26 of Guidelines and Table 9.1))

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

Marshal Douglas

Member

Dr Brian Williams

Medical Assessor

Dr Robert Payten

Medical Assessor

5 March 2021


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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Pereira v Siemens Ltd [2015] NSWSC 1133
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Campbelltown City Council v Vegan [2006] NSWCA 284