Gill v Multiquip Poultry Pty Ltd
[2025] NSWPICMP 518
•17 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gill v Multiquip Poultry Pty Ltd [2025] NSWPICMP 518 |
| APPELLANT: | Wayne Charles Gill |
| RESPONDENT: | Multiquip Poultry Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Gaius Whiffin |
| MEDICAL ASSESSOR: | Brian Williams |
| MEDICAL ASSESSOR: | Thandavan Raj |
| DATE OF DECISION: | 17 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal against Medical Assessor’s (MA) assessment of hearing loss without taking into account hearing losses at frequencies below 3000 Hz in the assessment of the appellant’s occupationally acquired hearing loss; demonstrable error alleged; Wingfoot Australia Partners Pty Limited v Kocak, Merza v Registrar of the Workers Compensation Commission and Anor, Manusu v Speed Flow Products Pty Ltd, Vitaz v Westform(NSW) Pty Ltd, and Bojko v ICM Property Service Pty Ltd & Ors considered and applied; McNaughton v Engineering & Business Services (NSW) Pty Ltd distinguished; no error found on the basis that the MA adequately explained his actual path of reasoning in coming to his conclusion regarding not including the appellant’s hearing losses at frequencies below 3,000 Hz in his assessment; Appeal Panel agrees with his assessment; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 April 2025, Wayne Charles Gill (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Henley Harrison (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 7 March 2025.
The appellant relies on the following ground 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.
The President’s delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, limited to the ground of appeal on which the Appeal is made.
Clause 128 of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction PIC7 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 cl 128(1) of the 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant is 70 years-of-age, and was employed by Multiquip Poultry Pty Ltd (the respondent) between 11 February 2011 and 12 November 2021. He was initially employed as a truck driver, and later employed as a shift supervisor.
In his statement dated 29 October 2024 (found at page 1 of the Application to Resolve a Dispute (ARD)), he describes his employment with the respondent as follows:
“Whilst employed by the Respondent, I was exposed to noise of live bird harvesters, heavy industrial fans within the hatchery loading-rooms and conveyor belts, truck engines, compression breaks, exhaust breaks and forklifts. I recall that I worked 8 to 9 hours per shift, 5 shifts per week and was exposed to noise for between 4 and 5 hours of each shift.”
He says that he has not worked in noisy employment since 12 November 2021. He also says that prior to his employment with the respondent:
(a) he operated a parcel delivery service with his wife between 1993 and August 2010 – where he was not exposed to any significant noise;
(b) he was unemployed between 1991 and 1993, and
(c) he was employed as a clerk with the NSW Government Railways between 1972 and 1991 – he was exposed to the noise from passing coal trains during four years of this employment in the late 1970s - he says that the noise lasted for approximately 30 minutes per shift.
He also says 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 ear infections.
He says that his hearing problems have progressively become worse over time, and he explains how those difficulties have affected his social and familial relationships.
There is no dispute between the parties that the appellant has sustained an injury in the form of occupationally acquired hearing loss. There is also no dispute between the parties that, pursuant to s 17 of the Workers Compensation Act 1987 (the 1987 Act):
(a) the respondent (as the last employer to employ him in an employment to the nature of which his hearing loss is due) is responsible for his compensation claim regarding that loss, and
(b) his date of injury is deemed to be 12 November 2021, being the last date when he worked with the respondent.
His hearing loss was assessed by Dr Macarthur, and the doctor provided a report in this regard dated 6 December 2022 (found at page 15 of the ARD). The doctor conducted audiological tests and found as follows:
“The percentage hearing loss as calculated from the National Acoustic Laboratory Tables January 1988 is 29.1%...After subtracting the losses at 500, 1000 and 1500Hz as I do not believe these frequencies have been affected by loud noise i.e. subtracting 7.2%, and subtracting 3.3% for presbyacusis [sic], and making an addition of 2.0% for severe tinnitus, the adjusted total binaural hearing loss is 20.6%. The Whole Person Impairment is 11.0%.”
By letter dated 3 January 2023 (found at page 7 of the ARD), the appellant formally claimed lump sum compensation from the respondent pursuant to s 66 of the 1987 Act, in relation to his hearing loss as assessed by Dr Macarthur.
The respondent arranged for the appellant to be assessed by Dr Payten, and that doctor provided a report in this regard dated 17 April 2023 (found at page 1 of the respondent’s Reply (Reply)). The doctor also conducted audiological tests and found a total binaural hearing loss of 34.9%. He then deducted his findings as to the appellant’s hearing losses at the lower frequencies (0.5, 1.0, and 1.5 KHz) “as the duration, loudness, and characteristics of noise exposure in his [the appellant’s] case has not been sufficient to cause deafness at these frequencies”. He also deducted an allowance for presbycusis, refused to make any addition for severe tinnitus, and found 18% occupationally acquired binaural hearing loss (9% whole person impairment).
Following Dr Payten’s assessment, the respondent issued a notice pursuant to s 78 of the 1998 Act dated 10 May 2023 (found at page 8 of the ARD), in which it declined the appellant’s claim pursuant to s 66 of the 1987 Act regarding his hearing loss. As a result, the appellant lodged the ARD with the Personal Injury Commission (Commission).
The Commission then on 6 January 2025 referred the medical dispute regarding the extent of the appellant’s occupationally acquired hearing loss to the Medical Assessor.
PRELIMINARY REVIEW
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.
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 the Appeal Panel possessed sufficient evidence within the documentary evidence before it, in order to be able to determine the Appeal.
It is relevant to note in this regard that the appellant specifically submitted that the Appeal “can be considered on the papers and re-examination is not required”. The respondent also agreed that a re-examination of the appellant was not required.
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:
(a) the ARD and attached documents;
(b) the Reply and attached documents, and
(c) the referral from the Commission’s President’s delegate to the Medical Assessor dated 6 January 2025.
Medical Assessment Certificate
The parts of the MAC that are relevant to the Appeal are set out, where relevant, in the body of this decision. It is unnecessary to refer to the MAC in detail given the limited nature of this Appeal.
The Medical Assessor takes a history of the appellant’s employment and the appellant’s occupational noise exposure, consistent with the appellant’s 29 October 2024 statement (save that the Medical Assessor obtains a history of the appellant’s noise exposure with the NSW Government Railways as occurring between 1978 and 1980, rather than for a period of four years).
The Medical Assessor records the appellant’s symptoms as follows:
“He has had difficulty hearing for about 15 years and the ears appear about equally affected. He used to need the television turned up before he obtained hearing aids and his wife used to complain about this. He has trouble hearing and understanding people including family, friends and other persons and has to ask them to repeat themselves. The hearing is worse in group conversations of background noise. He also has noises in the ears (tinnitus) but he has become used to this and I do not consider it to be severe. He has no balance problems.”
The Medical Assessor conducts audiological tests on the appellant, and summarises his findings as follows:
“Bilateral sensori-neural deafness partly due to occupational deafness and partly due to another unknown cause or causes probably at least partly constitutional…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).”
The Medical Assessor finds a total binaural hearing loss of 41.7%, of which 26.4% is to be deducted for hearing loss not occupationally acquired, and of which 4.9% is to be deducted for presbycusis. The Medical Assessor does not provide any allowance for tinnitus, and therefore assesses the appellant’s occupationally acquired binaural hearing loss at 10.4% (5% whole person impairment). The Table utilised by the Medical Assessor to record his audiogram findings is below:
Frequency
Hz
Left dB HL%
Air Bone
Right dB HL%
Air Bone
Total
% BHI
Occupational
% BHI
500
15 5 0.0
15 15 0.0
0
0
1000
30 25 3.5
35 35 5.7
4.2
0
1500
55 55 11.2
65 65 14.0
11.5
0
2000
65 60 10.5
70 65 11.6
10.7
0
3000
70 70 7.7
70 70 7.7
7.7
7.7
4000
70 >60 7.5
75 >60 8.2
7.6
7.6
The Medical Assessor only uses his findings as to the appellant’s hearing losses in the higher frequencies of 3,000 Hz and above in his calculation of the appellant’s occupationally acquired hearing loss. He explains as follows:
“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 noise induced occupational hearing loss the lower frequencies are usually preserved and the hearing loss in the effected frequencies increases in severity with increase in frequency until at least 3000 cps. This, in turn, is because in noise induced occupational hearing loss when damaging noise enters the inner ear or cochlea it does so through the basal coil of the snail shaped cochlea where the sound sensitive hair cells for the frequencies 3000 to 6000 cps are situated and damages one of these frequencies first. With time and further exposure to loud noise adjacent frequencies can be affected but they are affected less and less the further away they are from the initial damage. In this case the hearing loss at 2000 cps is almost the same as at 3000 cps (on the right side it is the same and on the left side there is only 5 dB difference which is [an] insignificant and insufficient difference). Hence the profile of the audiogram below 3000 cps is inconsistent with being due to occupational noise exposure. I have therefore apportioned the occupational noise exposure to the frequencies 3000 cps and above in which the profile is consistent with that diagnosis. This apportionment gives 15.3% BHI before mandatory deduction for presbycusis and 10.4% BHI after such deduction. The tinnitus is not severe so no allowance for this is appropriate. The foregoing give [sic] a resultant total BHI of 5%.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MAC contains a demonstrable error as the appellant’s hearing losses suffered below the 3,000 Hz frequency are not taken into account in the assessment of his occupationally acquired hearing loss. He refers specifically to the Medical Assessor not obtaining a correct history of how long he worked for the NSW Government Railways in noisy employment. He also refers to the opinions of both Drs Macarthur and Payten which only did not take into account hearing losses suffered below the 2,000 Hz frequency in their assessments of his occupationally acquired hearing loss.
The appellant quotes in full the extract from the MAC quoted at paragraph 26 above. He argues that the Medical Assessor “advances no reasoning” regarding his opinion as to the insignificance of the 5 dB difference in the left ear hearing loss at the 2,000 Hz frequency compared with the left ear hearing loss at the 3,000 Hz frequency. The facts and circumstances on which this opinion was based have not been made apparent, and the Medical Assessor has therefore not properly explained his actual path of reasoning. The appellant quotes extensively from the decision of an appeal panel in McNaughton v Engineering & Business Services (NSW) Pty Ltd [2021] NSWPICMP 159 (McNaughton), a decision which relied upon the High Court authority of Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 (Wingfoot).
The appellant notes that the Medical Assessor, as well as Drs Macarthur and Payten, all agree that “noise-induced hearing loss is typically progressive, affecting the higher frequencies first, meaning that the loss suffered at 2,000 Hz should be less than the loss suffered at 3000 Hz, and so on”. He argues there is a difference between his left ear hearing loss at the 2,000 Hz frequency and his left ear hearing loss at the 3,000 Hz frequency. This difference is consistent with the progression in hearing loss that is typical of occupationally acquired hearing loss, and should not be regarded as insignificant.
In reply, the respondent submits that:
(a) the complaint made by the appellant that the Medical Assessor incorrectly found his hearing losses suffered below the 3,000 Hz frequency to be not caused by noise exposure, is not any error that is “readily apparent” from an examination of the MAC – it is therefore not a demonstrable error in accordance with Merza v Registrar of the Workers Compensation Commission and Anor [2006] NSWSC 939 (Merza);
(b) while “hearing loss at lower frequencies should not automatically be excluded from assessment of noise-induced hearing loss”, each case needs to be considered “on its own merits”, having regard to a detailed review of the evidence available, an examination of the injured worker, and the benefit of an audiogram;
(c) the Medical Assessor provided a detailed explanation as to why he did not include the appellant’s hearing losses at frequencies below 3,000 Hz in his assessment of the appellant’s occupationally acquired hearing loss – the respondent also quotes in full the extract from the MAC quoted at paragraph 26 above, and
(d) in Manusu v Speed Flow Products Pty Ltd [20170 NSWWCCMA 61 (Manusu), an appeal panel concluded that it was not incumbent upon a medical assessor to identify the precise nature or cause of non-occupationally acquired hearing loss, as the role of a medical assessor is instead to identify the proportion of such a loss which resulted from noise exposure - the panel appropriately distinguished the facts in that case “based on the duration of the noisy employment, from other decisions that included the loss at lower frequencies concerning workers who had been employed for 40+ years in noisy employment”.
FINDINGS AND REASONS
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), the Court of Appeal held that an 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 procedures on appeal are contained in s 328 of the 1998 Act. An 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 an appeal is made – that is those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
An appeal panel in this regard has to ensure that it does not disturb any unchallenged findings in a medical assessment certificate. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, 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 [emphasis in original] 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.”
The only ground of appeal put forward by the appellant relates to the Medical Assessor’s decision not to include hearing losses at frequencies below 3,000 Hz in his assessment of the appellant’s occupationally acquired hearing loss. The remainder of the Medical Assessor’s findings in the MAC are unchallenged. Therefore, if the Appeal Panel agrees with this decision not to include hearing losses at frequencies below 3,000 Hz in the assessment of the appellant’s occupationally acquired hearing loss, the MAC must be confirmed.
The Appeal Panel notes the appellant’s history of under 15 years of occupational noise exposure. The Appeal Panel also notes that the noise exposure was not continuous during his employment with the respondent (4-5 hours per 8-9 hour shift) or during his employment with the NSW Government Railways (30 minutes per shift).
The Appeal Panel agrees with the Medical Assessor that this degree of occupational noise exposure is inconsistent with an ability to damage the appellant’s hearing at frequencies below 3,000 Hz (including at 500 Hz, 1,000 Hz, and 1,500 Hz, as well as at 2,000 Hz). The nature, duration and characteristics of the noise exposure is not sufficient noise exposure in the opinion of the Appeal Panel, to affect the appellant’s hearing losses at those lower frequencies. The Appeal Panel also notes in this regard that both Drs Macarthur and Payten did not include in their assessments the appellant’s hearing losses at all frequencies below 3,000 Hz.
The Appeal Panel agrees with the Medical Assessor that hearing losses at frequencies at and above 3,000Hz are affected by damaging noise first, and that “with time and further exposure to loud noise adjacent frequencies can be affected but they are affected less and less the further away they are from the initial damage”. In the case of the appellant, the Appeal Panel does not consider that the extent of his occupational noise exposure would have been sufficient for hearing losses at frequencies below 3,000 Hz to be affected. The Appeal Panel sees as significant in this regard the findings in the Medical Assessor’s audiogram (see paragraph 25 above) of the appellant’s marginal hearing loss differences at 3,000 Hz, compared with at 2.000 Hz, as well as at 1,500 Hz. Indeed, the appellant’s hearing loss in his right ear was equal at both 3,000 Hz and at 2,000 Hz. Although there was a slight difference between his hearing loss in his left ear at 3,000 Hz compared with at 2000 Hz (5 dB), the Appeal Panel agrees with the Medical Assessor that this slight difference is not significant enough (when considered along with the extent of his occupational noise exposure and the lack of any difference in his right ear hearing loss at those frequencies) to determine that the damaging noise to which he was occupationally exposed to had progressed to affect his hearing loss at adjacent frequencies below 3,000 Hz.
The Appeal Panel rejects the appellant’s submission (see paragraph 29 above) that the Medical Assessor’s path of reasoning in this regard is unclear. In the extract from the MAC quoted at paragraph 26 above, he provides his reasons with clarity and in detail. He clearly mentions his consideration of his audiogram finding that the appellant’s “hearing loss at 2000 cps is almost the same as at 3000 cps” and that any hearing loss difference in the appellant’s left ear at these frequencies is both an “insignificant and insufficient difference”. He explains the difference to be insignificant and insufficient as it is only a 5 dB difference. He then proceeds to reason that “the profile of the audiogram below 3000 cps is inconsistent with being due to occupational noise exposure”. He is not obliged to identify the precise nature or cause of the non-occupational hearing loss found. As found to be the case in Manusu, his role is to identify the proportion of the appellant’s hearing loss which has resulted from noise exposure, and he has done so by reasoning that it is only the relevant hearing losses at frequencies at and above 3,000 Hz in this regard.
A medical assessor is required to explain his path of reasoning in sufficient detail, so that speculation is not involved in determining whether the assessment involves merely a disagreement or a difference of opinion, or whether it involves an error.
In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Basten JA (at [34]) stated:
“Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”
In Western Sydney Local Health District v Chan [2015] NSWSC 1968, Adams J (at [13]) saw the role of a medical assessor as analogous to the role of the Victorian Medical Panel discussed by the High Court in Wingfoot. At [55] in Wingfoot, the plurality of the High Court stated as follows:
“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. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
The Appeal Panel finds the Medical Assessor’s reasoning to be more than adequate, in accordance with Vitaz and Wingfoot. Sufficient detail and explanation is provided to enable all parties to understand why the Medical Assessor determined not to take into account hearing losses in frequencies below 3,000 Hz in the assessment of the appellant’s occupationally acquired hearing loss. The Appeal Panel finds no error in the details and explanations in this regard.
Further, the Appeal Panel is aware that the assessment a medical assessor undertakes of a worker’s permanent impairment is an administrative task, and consequently there is a presumption of regularity that a medical assessor has attended to all matters necessary to undertake the task of assessing a worker’s permanent impairment. In Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175 (Bojko), Handley AJA stated at [36] why the appellant failed in that case:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
After considering the Medical Assessor’s path of reasoning (see paragraph 26 above), the Appeal Panel finds that the appellant has not been able to rebut the presumption of regularity referred to in Bojko.
In relation to the appellant’s submission (see paragraph 28 above) regarding the differing views between the Medical Assessor and Drs Macarthur and Payten, regarding whether to take into account hearing losses in frequencies below 3,000 Hz in the assessment of the appellant’s occupationally acquired hearing loss, the Appeal Panel considers the differing views to be “a mere difference of opinion on a subject about which reasonable minds may differ”.
Such a difference of opinion does not establish error - see Ferguson v State of New South Wales [2017] NSWSC 887, Parker v Select Civil Pty Ltd [2018] NSWSC 140, and Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633.
Indeed, the Appeal Panel (as another “reasonable mind”) agrees with the Medical Assessor’s opinion and clinical judgement in this regard.
Finally, in relation to the appellant’s submission (see paragraph 28 above) regarding the Medical Assessor not obtaining a correct history of the appellant’s employment with the NSW Government Railways, the Appeal Panel notes (see paragraph 22 above) that the Medical Assessor only considered up to three years of noisy employment in this regard, rather than four years. Considering however that the employment only involved 30 minutes per shift of noisy employment, the Appeal Panel does not find that a correct history of the appellant’s employment in this regard would be such as would affect the reliability of the Medical Assessor’s assessment and reasoning. In any case, the Appeal Panel has considered the full almost 15 years of the appellant’s noisy employment with all employers, and has found (see paragraph 37 above) that the nature, duration and characteristics of the noise exposure in that employment is not sufficient noise exposure to affect the appellant’s hearing losses at frequencies below 3,000 Hz.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 March 2025 should be confirmed.
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