Habak v State Emergency Services
[2021] NSWPICMP 191
•13 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Habak v State Emergency Services [2021] NSWPICMP 191 |
| APPELLANT: | Joseph Habak |
| RESPONDENT: | State Emergency Services |
| Appeal Panel: | Member Jane Peacock Dr Robert Payten Dr Henley Harrison |
| DATE OF DECISION: | 13 October 2021 |
| CATCHWORDS: | wORKERS cOMPENSATION- Acoustic trauma; Medical Assessor could not obtain audiogram and relied on other expert’s findings; did not complete Medical Assessment Certificate (MAC) as required; Held - Appeal Panel satisfied as to error and that re-examination was required; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 December 2020 Mr Joseph Habak (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by
Dr Kenneth Howison, a MA, who issued a Medical Assessment Certificate (MAC) on 18 November 2020.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 MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant sought that he be re-examined by a MA who is a member of the Appeal Panel. The respondent submitted that a re-examination was not necessary. As a result of the Panel’s preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel was satisfied that the MA had erred.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
In addition the Appeal Panel as a result of its preliminary review directed as follows:
“The Panel has determined that the following medical records, not already before it, should be produced:
1Vestibular Function Test conducted at Prince of Wales Hospital April 2019
2CERA conducted by Dr Brian Williams (x2)
3CERA conducted by Precision Hearing
4Vestibular function test conducted by Precision Hearing”
There was some considerable delay in the documents being produced to the Appeal Panel which was not the fault of the parties. Ultimately documents were produced and in order to accord the parties procedural fairness a direction was made giving the parties the opportunity to make submissions on the documents produced as follows:
“It is noted that the Panel has determined that the following medical records, not already before it, should be produced:
1Vestibular Function Test conducted at Prince of Wales Hospital April 2019
2CERA conducted by Dr Brian Williams (x2)
3CERA conducted by Precision Hearing
4 Vestibular function test conducted by Precision Hearing
It is further noted that the final documents were produced on 7 July 2021.
In order to accord the parties procedural fairness the Panel will provide the parties with the opportunity to address the Panel on the produced documents, should they wish to do so, by way of written submissions as follows:
1.The appellant to file and serve written submissions within 14 days that is, by 4pm 22 July 2021.
2.The respondent to file and serve written submissions within a further 14 days that is, by 4pm 5 August 2021.”
Further medical examination
Dr Robert Payten of the Appeal Panel conducted an examination of the worker on 22 April 2021 and subsequently reported to the Appeal Panel with the benefit of consideration of the additional documents produced.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The following matters were referred to the MA for assessment (s 319 of the 1998 Act):
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: 3 September 2016
·Body parts/systems referred: Hearing
·Method of assessment: Whole person impairment”
The MA issued a MAC certifying “In my opinion, Mr Habak has not sustained any whole person impairment as a result of the injury therefore calculations of whole person impairment are not indicated”. He did not complete the requisite Table.
The appellant appealed on the basis that the MA has made a demonstrable error and in summary relied on four grounds of appeal as follows:
“● Ground 1 – audiological testing
· Ground 2- diagnosis of Meniere’s disease
· Ground 3 – CERA testing
· Ground 4 - failing to take into account the audiological tests performed by
Mr Simon Rathbone on the appellant by staff employed by the AMS on the date of examination 9 November 2020.”The respondent submitted in summary that the MA did not err and that his MAC should be confirmed. In summary the respondent submitted that the MA was entitled to rely on his clinical findings on the day of examination.
The Appeal Panel was satisfied as to error. The MA said he could not obtain a reliable audiogram and then relied on the findings of Dr Scoppa which he then used to conclude that there was no WPI as a result of injury which is contrary to the assessment of Dr Scoppa. He did not complete the requisite Table when certifying his findings but simply left it blank. The Appeal Panel was satisfied that the MA erred in his approach and that a re-examination was required.
The Appeal Panel as a result of its preliminary review directed a re-examination of the worker by a MA member of the Panel, Dr Payten who conducted a re-examination and reported to the Panel.
In addition the Appeal Panel directed that documents be produced as set out above.
Dr Payten conducted an assessment of the appellant on 22 April 2021 and subsequently reported to the Panel with the benefit of the additional documents produced as follows:
“1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The following matters have been referred for assessment (s 319 of the 1998 Act):
· The nature and extent of hearing loss suffered by a worker
· The degree of permanent impairment of the worker as the result of an injury
· Whether any proportion of permanent is due to any previous injury or pre-existing condition or abnormality and the extent of that proportion
· Whether impairment is permanent
· Whether the degree of permanent impairment of the injured worker is fully ascertainable
· Date of injury: 3 September 2016
· Body parts/systems referred: Hearing
· Method of assessment: Whole person impairment
2. EVIDENCE
Documentary Evidence
The following medical reports, statements and/or submissions were referred by the Registrar or the Commission for this further assessment or reconsideration:
· Medical Report of Dr Kenneth Howison, ENT Specialist, dated 9 November 2020
· Statements of Dr Paul Fagan dated 13 March 2020 and 20 September2017
· Statements of Dr Joseph Scoppa dated 14 November 2017,5 May 2018, 25August 2019, 30 November 2019
· Appellant’s submissions dated 11 December 2020: Mr Joseph Habak appeals the MAC of Dr Howison dated 18 November 2020.
Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
*CERA conducted by Dr Brian Williams on 27/03/2018, original report copy.
*CERA conducted by Dr Brian Williams on 28 /10/2019, original report copy.
*Vestibular function tests conducted by Neurosensory on 20/01/2017, original report copy.
·CERA conducted by Precision Hearing 01/03/2019, original report copy
3. ADDITIONAL HISTORY SINCE THE ORIGINAL MEDICAL ASSESSMENT CERTIFICATE WAS ISSUED
The history taken by Dr Howison was in my opinion incomplete. I therefore give the total history as follows and as taken on the day of his assessment by me, on 22 April, 2021.
On Saturday, 3 September 2016, Mr Habak was working the nightshift and received a call at 9:06 pm about a motor vehicle accident and following usual practice, he got off the telephone and switched on the SES radio. He was on the radio for about two hours, during which time there were approximately six sharp sounds known as squelches, of moderate loudness, which he was able to tolerate. Then there was one exceptionally loud squelch noise, causing him to reflexly remove his headset suddenly and push backwards on his wheeled office chair for a couple of metres. There were a couple of fellow workers sitting 10 metres away and they were able to hear this loud squelch noise coming from his headset.
The SES radio comes through a Motorola console and from there, the signal passes through an automatic sound shield which has a sound volume limiting function, before reaching his headset. Mr Habak has been told by a senior technical officer for SES, (name supplied) that the sound shield between the console and his headphones was faulty and offered no protection against a very loud sound. He also said that the Motorola receiving console was also faulty and had not been serviced for many years, if at all.
Immediately after this extremely loud noise, Mr Habak experienced pain in both ears, so that he grabbed both of his ears and leant forward in his chair. He continued to have pain in the ears and was aware of the onset of loud tinnitus on both sides. He also felt that there was a severe pressure inside his head. His head was throbbing and his hearing, he felt was diminished, but he was able to finish his shift at 7 am on Sunday morning, as there was little demand on his hearing overnight.
He went home on Sunday morning and tried to get some sleep but he was unable to get to sleep because of continued pounding headache and loud tinnitus. Later that day, because it was Father's Day, there was a family lunch in Kiama but he became aware of not being able to hear conversation in the restaurant, where there was some background noise. He was aware of hypersensitivity to noises of only moderate loudness at this stage but there was no dizziness.
He saw his general practitioner, Dr Jalota, on Monday, 5 September 2016, and had an audiogram performed on 14 September 2016. He saw an ENT specialist, Dr Joanna Walton on 27 September 2016. Mr Habak says that she diagnosed noise-induced hearing loss and treated him with oral prednisone.
A follow-up audiogram on 18 October 2016, showed no improvement, he says, so he agreed to have a steroid injection through the tympanic membrane, which was done. The other ear was injected about a week later but unfortunately he had a bad reaction and became almost psychotic after this, for a short period.
Dizziness began approximately a few weeks after the event when he noticed that there was some spinning sensation after bending forwards and then standing up and lasting for a couple of minutes. Mr Habak tried to resume fitness training about a month after the incident but he found that he could not do this because he became dizzy and felt off balance after exercise.
When he was assessed by Dr Scoppa, a bit over a year after the incident, he described his attacks of vertigo as lasting usually for two minutes at a time, occurring a few times every day. Dr Scoppa reported that ‘the dizziness does not impact significantly on activities of daily living because of its infrequent occurrence and relatively short duration. He usually rests until the episode resolves and he is then able to resume normal activity. He still manages to drive but avoids driving long distances'.
He reported today that the frequency and duration of this type of dizziness still remains about the same.He was referred to see a psychologist and also referred to see a neurologist,
Dr Granot, by Dr Sean Flanagan, ENT specialist. On 29 January 2019, Dr Flanagan gave the opinion that he had developed an endolymphatic hydrops-type syndrome on the right-hand side but this alone did not explain the significant pain he is feeling in the right ear. He had previously seen Dr Ian Gutteridge, an ENT specialist who was doing a locum for Dr Flanagan on 6 November 2018. He diagnosed likely atypical migraine and Meniere's syndrome of delayed onset triggered by acoustic trauma. Previous vestibular function tests ordered by Dr Walton were normal.In February 2018, about 18 months after the incident at work, he experienced his first bout of severe vertigo, which came on in bed one night causing nausea, extreme imbalance and vomiting and diarrhoea. This lasted for hours. An ambulance was called and he went to Wollongong Hospital where he was kept for observation for about 12 hours and where he was given some medication. It took a few days at home after this before his balance came back to where it had been previously. Since then, he has been having severe episodes of vertigo with nausea and vomiting, every two or three months, throughout 2018, 2019, 2020 and so far in 2021 he has had two or three episodes. He is aware the attacks are about to occur because of a sensation of mild spinning and the onset of a pounding throbbing sensation in both sides of the head and also a sense of disorientation. During his severe attacks, he stays in bed for about a day and during the attacks he is aware that his tinnitus becomes very loud and his hearing becomes worse. After the attacks have finished his hearing returns back to where it was prior to the attack, although he feels that his hearing has slowly become worse since the accident.
Mr Habak now wears hearing aids.
His hearing is far from normal as he finds it difficult to converse if not face to face with a speaker. The television is turned up too loud for others in the family and he finds it difficult to hear in noisy places.
He is hypersensitive to noise and finds the noise of cutlery being placed onto a hard surface is extremely loud or putting a plate down firmly on the sink.
His tinnitus remains very loud, interfering with his concentration and his hearing during the day and interfering with his sleep. His tinnitus is a major problem.He currently experiences recurrent short-lived vertigo for a few minutes at a time, about twice a day. His last attack of severe vertigo was about two months ago. He is able to drive but pulls over when he begins to experience any slight dizziness in case it leads to a major attack. However, after pulling over, he waits for a few minutes and once the dizziness passes, he is able to drive on.
Prior to the accident Mr Habak was in very good health. Since the accident, he has put on a lot of weight as he is not able to exercise as he did regularly prior to the accident. He now suffers from depression and anxiety following the accident.
He had been employed by the SES in the operations centre since 2009. He said he loved his job and felt that he was of value to the community.
Prior to that, he was employed as a sheriff officer for the Sutherland Court between 2003 and 2009.
Prior to that, he was doing accounting from 1997 to 2003.
4. FINDINGS ON PHYSICAL EXAMINATION
The ear canals and tympanic membranes were normal. He was not experiencing vertigo at the time of his visit today and his gait was satisfactory.
A pure-tone audiogram was performed in a sound proofed booth using a calibrated audiometer. The audiologist was Ms Jane Horan, BA, Dip AUD, M. AUD, SA, CCP. The audiogram showed a severe-to-profound hearing loss in both ears, the loss being symmetrical. (Audiogram attached, BHI = 98.7%, NAL Tables 1988).Ms Horan, sitting about 2 m from Mr Habak and using a live voice of conversational volume, read a Standard Sentence List, number 13 (The Bamford-Kowal-Bench/Australian version). Mr Habak scored 24/26 words read to him in a quiet office environment, without visual cues which would allow lipreading (his eyes were closed), and without hearing aids. He also detected 20 out of 24 words with his eyes open . Ms Horan is of the opinion that because of his good ability to hear conversational voice, the audiogram did not give an accurate representation of his hearing loss and showed much worse hearing than is actually present.
In my opinion, from the above word test, he is suffering from no more than a moderate to severe hearing loss. The reason for his audiogram showing a severe to profound loss is unclear but it may be partly due to the loudness of his tinnitus interfering with the test tone and partly due to his inability to concentrate on the test signal.
5. DETAILS AND DATES OF SPECIAL INVESTIGATIONS
Dr Howison’s MAC did not mention any of the following.
1. 13 September 2017, as noted in Dr Fagan’s report, a pure-tone audiogram by audiologist Edith Segal, shows a BHI equal to 21.9%.
Dr Fagan says in his report dated 20 September 2017, with regard to this audiogram 'responses were repeatable on ascending and descending threshold measurements.
Repeated audiograms have been carried out in various centres. With test/re-test error they correspond to the audiogram carried out today.’2.29 March 2018, CERA, performed by Dr Brian Williams, BHI equals 20.9%.
3.31 March 2019, CERA, as tabulated by Dr Fagan in his report on 13 March 2020, was performed by Precision Hearing. BHI equals 8.3%.
4.28 October 2019, CERA (Dr Brian Williams), BHI equals 32.8%. A pure tone audiogram performed on the same day showed a binaural hearing loss of 62.6%. Dr Williams commented that the pure tone responses below 2KHz were inconsistent with the CERA and speech discrimination testing.
6.21 January 2020, Dr Paul Fagan, pure-tone audiogram, BHI 62.2%.
7.Audiograms performed by Hearing Innovations, dated 26 September 2018, (BHI 52.7%) and 3 October 2018 (BHI 76.9%)
8.Vestibular function tests were performed on 20 January 2017 by Neurosensory.
Video Head Impulse Testing (VHIT) showed that all 6 semicircular canals were normal.
C VEMPS and O VEMPS were normal excluding vestibular abnormality.
A comment, “many false positive tests” was made at the time of an audiogram performed by Neurosensory on 20 January 2017, which showed a BHI of 7.3%.
Neurosensory carried out a tinnitus assessment and on a questionnaire (TRQ) found he had a score of 94 out of a possible 104, with any score above 17 being clinically significant.
9. An MRI of the brain was said to be normal in Dr Fagan's report dated 20 September 2017.
6. EVALUATION OF PERMANENT IMPAIRMENT- ASSESSMENT AND REASONS
(a)My opinion and assessment of permanent impairment and or whole person impairment:
Mr Habak has a bilateral sensorineural hearing loss and severe tinnitus due to exposure to a very loud noise in both ears at work on 3 September 2016.
During the two hours with Mr Habak I found him co-operative and a good historian.
There have been repeated difficulties in obtaining pure-tone audiograms and for that reason, cortical evoked response audiograms have been performed on three occasions, as mentioned above in "Details of Special Investigations.". His audiogram today (see attached) showed a symmetrical bilateral hearing loss, which was severe to profound, while his ability to understand the live voice without visual cues (his eyes were shut) suggested no more than a moderate to severe deafness was present.
I discussed with Mr Habak about another CERA being performed. He put his head in his hands and became very deflated, saying that the thought of yet another CERA was intolerable and that this would add to his tendency to having “bad thoughts”.
After giving this some thought, in my opinion another CERA is not justified in the circumstance of his depression and may well produce no new information, in addition to that all ready obtained from the previous 3 CERAs
Mr Habak has developed vertigo. The first lesser type of vertigo which began a few weeks after the incident, is short lived, lasting for a couple of minutes and recurring about twice a day
In February 2018, he began to have attacks of more severe vertigo with vomiting and nausea, recurring every two or three months. His symptoms of severe vertigo, louder tinnitus and worse hearing during the attacks are symptoms found in Meniere's disease.
However, with the severe bouts of vertigo, he has other symptoms of a pounding, throbbing sensation in both sides of the head, a sense of disorientation and also pain in the ears, which are not symptoms of Meniere's disease but are possibly due to vestibular migraine, as diagnosed by ENT Specialist Dr Gutteridge on November 6,2018.
In my opinion, these above symptoms of vertigo have not been caused by the incident on 3 September 2016.
My opinion about his hearing loss and severe tinnitus..
From the history, Mr Habak was subjected to a very loud noise coming through the headset which was attached to the radio he was tuned into at the time. Mr Habak states that the senior technician has informed him that the protective sound shield on the radio was not functioning and that the Motorola console was also faulty. The loud radio sound he was exposed to could be heard by those standing 10 feet away and was probably therefore loud enough to cause hearing loss and severe tinnitus. SafeWork NSW states that acoustic trauma injuries can be caused immediately from the single exposure to a peak level sound that exceeds 140 dB (C). This was probably the case in this situation.
In my opinion, the symptoms of progressive, recurrent fluctuating hearing loss and vertigo, which began about 18 months after the incident, are not due to the delayed onset of Meniere's disease, caused by acute noise trauma sustained on 3 September 2016. This diagnosis was raised by
Dr Flanagan and Dr Scoppa. Having surveyed the literature, I believe that there is no concrete evidence that noise trauma causes the delayed onset of endolymphatic hydrops giving rise to Meniere's disease.Segal et al (Otol and Neuro Otol, May 2003, Volume 24, Issue 3, Page 387 - 391) published an epidemiological study of 17,245 Israeli Defence Force veterans who were recognised as being disabled as a result of acoustic trauma or noise induced hearing loss. 11 cases of late-onset Meniere's were retrieved from these files. 4 of the 11 had documented previous noise-induced hearing loss and the remaining seven had experienced acute acoustic trauma. This yielded a prevalence of Menieres in a population with acoustic trauma or noise-induced hearing loss, comparable to that in the general population.
Ben Nageris published a review of noise-induced vestibular dysfunction (Noise and Health 2003: Volume 3, 9, 2000, Page 45-48). In his article it was stated as follows 'the repeated observations of vestibular dysfunction with a history of noise exposure have raised the possibility of a cause-effect relationship. Authors have been unable to confirm it statistically. During our 20 years-experience with noise-induced hearing loss, we encountered six patients in whom Meniere's developed after long term exposure to high noise levels. There may be a direct link between noise-induced hearing loss and vestibular disorders. However, it is still difficult to reach a definite conclusion'.
Dr Timothy Hain of Chicago Dizziness and Hearing and Northwest Memorial Hospital, in a review of the literature in 2020 comments as follows; ”we are dubious that impact noise such as gunfire during military service or by airbag deployment is a cause of delayed endolymphatic hydrops or Menieres.
I have also reviewed the articles by Di Biase, of 1997 and Kamei, of 1991, both concerning post-traumatic hydrops.
In addition, I note that Mr Habak’s history of short-lived vertigo, lasting only a couple of minutes and recurring a couple of times per day, is not at all typical of Meniere's disease.
In addition to noise-induced hearing loss and severe tinnitus, Mr Habak has symptoms of acoustic shock. These symptoms are hyperacusis, pain in the ear, headache, vertigo, anxiety and depression. and are thought to be due to a functional disorder caused by an excessive startle reaction to an unexpected loud noise. Acoustic shock is found mainly in telephone call centres where headset noise levels are set not to exceed 120 dB and therefore are not able to cause acute noise trauma. Hearing loss is therefore not caused by acoustic shock.
However, if in addition, sudden loud noise exposure is greater than 140 dB (C), then acoustic trauma injury can occur, as I believe it has in this case, causing hearing loss and tinnitus.My assessment of Whole Person Impairment.
WPI= 13%
I have considered the CERA of 1 March 2019, which showed a BHI of 8.3%. While at first sight, this would appear to be significantly less than the first CERA of 20.9% on 28 October 2018, it should be noted that the hearing found on a CERA is within 10 dB to 15 dB of a pure-tone audiogram. If 10 dB is added to each frequency of the CERA of the 31 March 2019, as I have done on "Attachment A", the binaural hearing impairment is 20.1%.
If 10 dB is subtracted from each frequency in the third CERA done on 28 October 2019, the hearing loss of 32.8% becomes 21.4% as can be seen on "Attachment B”
Using the CERA of the 29 March 2018, where there is a BHI of 20.9%, I conclude that having added 5% for severe tinnitus to give an adjusted BHI of 25.9%, Mr Habak has a whole person impairment of 13%.
In making that assessment I have also taken account of the following matters.
The average binaural hearing loss from the three CERAS performed is 20.7%. (20.9 +8.3+32.8 = 62%,divided by 3 =20.7%.).This is almost the same as the first CERA performed of 20.9%.
(b) An explanation of my calculations in addition to the worksheet or actual calculations attached
I have based my calculations on the CERA performed by Dr Brian Williams on 29 March 2018, of 20.9%. This was almost the same as the average of the three CERA tests as explained above. It also was only 1% better than the pure-tone audiogram performed by Ms Edith Segal on 13 September 2017,which showed a 21.9% loss. This audiogram, according to Dr Fagan's report, dated 20 September 2017, corresponded to repeated audiograms that had been carried out at various centres previously and the responses were repeatable on ascending and descending threshold measurements.
The total binaural hearing impairment is 20.9%. No deduction was made for pre-existing non-related loss, as prior to the incident he had good hearing. There has no been deduction for presbyacusis. 5% has been added for severe tinnitus to give an adjusted total binaural hearing impairment of 25.9%. This gives rise to a whole person impairment of 13%.
Worksheet /actual calculations attached.
Yes, please see Table 4.
c) My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
Dr Fagan in his first report dated 20 September 2017, said that Mr Habak had suffered from acoustic shock syndrome, as described by Groothoff, except that in this case the sound intensity of the squelch in the headphones was many times greater than that described by Groothoff, as it was clearly heard by co-workers some 10 m away. Dr Fagan went on to say that the trauma that caused the hearing loss also caused the tinnitus. He found a BHI of 21.9% to which he added 4% for severe tinnitus, to give a. BHI of 25.9% and a WPI of 13%.
From the above it can be seen that Dr Fagan has made two diagnoses, the first being acoustic shock syndrome, which is not an organic diagnosis and is not a cause of hearing loss.
The second diagnosis made is acoustic trauma that caused the hearing loss and severe tinnitus.I disagree with Dr Fagan's second report, dated 13 March 2020, where he concludes that he does not believe that an organic cause will be found to explain Mr Habak's hearing loss, tinnitus or vertigo. He gave the opinion that Mr Habak had suffered a finite episode of acoustic shock. Dr Fagan mentioned that signals in modern telephones are limited to 120 dB and that these levels are well below those considered to cause damage to hearing, depending on duration of exposure.
In this case I disagree, as in my opinion, there was noise loud enough to be capable of causing hearing loss and that this noise came from a radio, not a telephone and that radio had a faulty sound shield. Dr Fagan's first report also noted that Mr Habak had told him that the Motorola headphones he had been using had not been fitted with a sound shield.Dr Fagan's second report considered the CERA performed by Precision Hearing on 1 March 2019. Having explained that there was a correlation between CERA findings and pure-tone audiogram findings of less than or equal to 15 dB, he drew an audiogram produced by deducting 15 dB from the CERA thresholds at each frequency. This adjusted audiogram showed normal hearing in the left ear and normal hearing in the right at 0.5 kHz, 1.0 kHz and 1.5 kHz and a mild to moderate loss at 2.0, 3.0 and 4.0 kHz in the right ear. Had he added 10 dB to each frequency on the CERA, as I have done on "Attachment A", the binaural hearing impairment would have been 20.1%, which is consistent with the pure-tone audiogram done at the time of his first report and consistent with the first CERA performed by Dr Brian Williams on 29 March 2018.
Dr Scoppa, in his report dated 14 November 2017, documented in the history that Mr Habak had switched over from the telephone to the radio mode on 3 September 2016, and that he subsequently received a very loud noise through his headset causing immediate tinnitus and poor hearing and pain in the ears. I agree with Dr Scoppa that noise trauma had occurred.
Because of not being able to obtain an accurate audiogram, Dr Scoppa ordered a CERA and from this he calculated binaural hearing impairment of 20.9%, from the CERA performed Dr Brian Williams on 29 March 2018. After adding 4% for severe tinnitus, he found the whole person impairment of 12%.
Dr Scoppa gave a further supplementary report on 30 November 2019, commenting on a CERA performed on the 28 October 2019, which showed a binaural hearing impairment of 32.8%. He stated there was no obvious clinical explanation or cause to explain the progressive hearing loss from 20.9% to 32.8% but a possible cause was that he may have developed post-traumatic Meniere's disease as proposed by Dr Flanagan. Dr Flanagan, however, in his report on 29 January 2019, says that endolymphatic hydrops does not explain the significant pain he is experiencing around the right ear. Dr Scoppa recommended further review by a treating ENT surgeon to exclude or confirm the diagnosis of Meniere's disease.
In spite of the uncertainty of the diagnosis of post-traumatic Meniere's disease, Dr Scoppa altered his assessment of binaural hearing impairment caused by the incident at work and found that there was now a binaural hearing impairment of 32.8% causally and related to the accident and that after the addition of 5% for severe tinnitus, the adjusted binaural hearing impairment was 37.8%, equating to a whole person impairment of 19% (up from a WPI of 12% in his first report).
I am in disagreement with the above change in WPI from 12% to 19% by Dr Scoppa for the following reasons:
•Acute noise trauma damages the hair cells within the cochlea at the time of the incident and does not cause delayed hair cell damage beginning some time later.
•There is no convincing evidence that noise trauma is causally linked to the later development of Meniere's disease.
•Dr Scoppa fails to make any allowance for the fact that the correlation between CERA results and pure-tone audiogram results are less than or equal to 15 dB in 94% of cases (Lightfoot-Kennedy, Seminar of Hearing, 2016 February. 37 (1)).
As mentioned previously, in this case, if 10 dB is subtracted from the CERA of the 28 October 2019, at each frequency the binaural hearing impairment becomes 21.4% as in my "Attachment B".
·As mentioned previously, Segal et al found no increased prevalence of Meniere's disease amongst those 17,245 Veterans who had suffered noise trauma as compared to the general population.
I disagree with Dr Howison’s incomplete MAC dated 9 November 2020 where he says that Mr Habak has not sustained an organic injury or any whole person impairment. Dr Howison also did not complete the MAC Table 4.
He mentions that on the day of examination an accurate audiogram was not able to be obtained. From the history obtained today this audiogram was attempted by audiologist Mr Simon Rathbone.
(d) I certify that the Impairment is permanent and that the degree of permanent impairment is fully ascertainable.
Robert J Payten
MEDICAL ASSESSOR
MEDICAL ASSESSMENT CERTIFICATE
FURTHER ASSESSMENT OR RECONSIDERATION
Table 4 – Assessment of industrial deafness in accordance with Chapter 9 of the
NSW workers compensation guidelines for the evaluation of permanent impairment
and 1988 NAL Tables for injuries received after 1 January 2002
This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers
Compensation Act 1998
| Matter Number: | M1-5260/20 |
| Applicant: | Joseph HABAK |
| Date of Assessment: | 22 April 2021 |
FROM CERA 29 MARCH 2018
| Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI | ||
| 3 September 2016 | 500 | 30 | 35 | 3.4 | 3.4 | ||
| 1000 | 15 | 15 | 0.0 | 0.0 | |||
| 1500 | 20 | 20 | 0.6 | 0.6 | |||
| 2000 | 45 | 40 | 5.1 | 5.1 | |||
| 3000 | 45 | 40 | 3.4 | 3.4 | |||
| 4000 | 80 | 75 | 8.4 | 8.4 | |||
| 20.9 | 20.9 | ||||||
| TOTAL % BHI: 20.9% | |||||||
| Less Pre-existing non-related loss: 0% | |||||||
| Less Presbyacusis correction: 0% | |||||||
| Add % of severe tinnitus: 5% | |||||||
| Adjusted total % BHI: 25.9% | |||||||
| Resultant total BHI of 25.9 % = 13 % whole person impairment (Table 9.1) | |||||||
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY ROBERT J. PAYTEN, APPROVED MEDICAL SPECIALIST, PERSONAL INJURY COMMISSION
Attachment A
| Matter Number: | M1-5260/20 |
| Applicant: | Joseph HABAK |
| Date of Assessment: | 22 April 2021 |
FROM CERA 1 March 2019, adding 10dB to each frequency.
| Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI From CERA 1/3/2019 | % BHI From CERA adding 10dB | ||
| 3 September 2016 | 500 | 25 + 10 = 35 | 20 + 10 = 30 | 1.0 | 3.4 | ||
| 1000 | 20 + 10 = 30 | 20 + 10 = 30 | 0.8 | 3.5 | |||
| 1500 | 30 + 10 = 40 | 20 + 10 = 30 | 1.4 | 3.9 | |||
| 2000 | 25 + 10 = 35 | 50 + 10 = 60 | 2.8 | 4.7 | |||
| 3000 | 20 + 10 = 30 | 40 + 10 = 50 | 1.1 | 2.3 | |||
| 4000 | 20 + 10 = 30 | 65 + 10 = 75 | 1.2 | 2.3 | |||
| 8.3 | 20.1 | ||||||
Attachment B
| Matter Number: | M1-5260/20 |
| Applicant: | Joseph HABAK |
| Date of Assessment: | 22 April 2021 |
FROM CERA 28 October 2019, subtracting 10dB from each frequency.
| Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI From CERA 28/10/2019 | % BHI From CERA subtracting 10dB | ||
| 3 September 2016 | 500 | 35-10=25 | 40-10 =30 | 5.1 | 2.0 | ||
| 1000 | 20-10=10 | 25-10=15 | 1.2 | 0.0 | |||
| 1500 | 25-10=15 | 35-10=25 | 2.5 | 0.6 | |||
| 2000 | 65-10=55 | 75-10=65 | 10.8 | 8.6 | |||
| 3000 | 70-10=60 | 65-10=55 | 7.1 | 5.6 | |||
| 4000 | 60-10=50 | 70-10=60 | 6.1 | 4.6 | |||
| 32.8 | 21.4 | ||||||
“
Dr Payten has provided a comprehensive report after a lengthy examination of the appellant (some two hours including audiology) to the Appeal Panel. The Appeal Panel adopts the report and findings of Dr Payten.
Accordingly the Appeal Panel will revoke the MAC and issue a new MAC in accordance with the findings of Dr Payten which the Appeal Panel has adopted. The Appeal Panel will certify a 13% WPI as a result of the injury on 3 September 2016 as follows:
| Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI | ||
| 3 September 2016 | 500 | 30 | 35 | 3.4 | 3.4 | ||
| 1000 | 15 | 15 | 0.0 | 0.0 | |||
| 1500 | 20 | 20 | 0.6 | 0.6 | |||
| 2000 | 45 | 40 | 5.1 | 5.1 | |||
| 3000 | 45 | 40 | 3.4 | 3.4 | |||
| 4000 | 80 | 75 | 8.4 | 8.4 | |||
| 20.9 | 20.9 | ||||||
| TOTAL % BHI: 20.9% | |||||||
| Less Pre-existing non-related loss: 0% | |||||||
| Less Presbyacusis correction: 0% | |||||||
| Add % of severe tinnitus: 5% | |||||||
| Adjusted total % BHI: 25.9% | |||||||
| Resultant total BHI of 25.9 % = 13 % whole person impairment (Table 9.1) | |||||||
For these reasons, the Appeal Panel has determined that the MAC issued on 18 November 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Kenneth Howison 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:-
| Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI | ||
| 3 September 2016 | 500 | 30 | 35 | 3.4 | 3.4 | ||
| 1000 | 15 | 15 | 0.0 | 0.0 | |||
| 1500 | 20 | 20 | 0.6 | 0.6 | |||
| 2000 | 45 | 40 | 5.1 | 5.1 | |||
| 3000 | 45 | 40 | 3.4 | 3.4 | |||
| 4000 | 80 | 75 | 8.4 | 8.4 | |||
| 20.9 | 20.9 | ||||||
| TOTAL % BHI: 20.9% | |||||||
| Less Pre-existing non-related loss: 0% | |||||||
| Less Presbyacusis correction: 0% | |||||||
| Add % of severe tinnitus: 5% | |||||||
| Adjusted total % BHI: 25.9% | |||||||
| Resultant total BHI of 25.9 % = 13 % whole person impairment (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
Jane Peacock
Member
Dr Robert Payten
Medical Assessor
Dr Henley Harrison
Medical Assessor
13 October 2021
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