Hardy Pastoral Company Pty Ltd v Wall
[2025] NSWPICMP 636
•25 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hardy Pastoral Company Pty Ltd v Wall [2025] NSWPICMP 636 |
| APPELLANT: | Hardy Pastoral Company Pty Ltd |
| RESPONDENT: | Leonard Harold Wall |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Thandavan Raj |
| DATE OF DECISION: | 25 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for lump sum for binaural hearing loss assessed under Table of Disabilities; appellant asserted assessment made on basis of incorrect criteria and Medical Assessment Certificate (MAC) contained demonstrable error; Medical Assessor applied incorrect deduction for presbycusis; failed to provide workings; Held – error found; re-assessed by Appeal Panel using Medical Assessor’s audiogram; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 May 2025, Hardy Pastoral Company Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
10 April 2025.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes - set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
This matter was assessed under the Table of Disabilities.
RELEVANT FACTUAL BACKGROUND
The respondent claimed lump sum compensation in respect of hearing loss as a result of injury deemed to have occurred on 1 February 1993, in the course of his employment as a farm hand.
The respondent lodged an Application to Resolve a Dispute (Application) on
6 November 2024, claiming permanent impairment compensation of $49,750 in respect of 17% whole person impairment, as a result of injury deemed to have occurred on
27 May 2024.The appellant lodged its Reply on 4 December 2024.
The appellant disputed a number of matters.
The matter was accordingly listed for preliminary conference on 6 February 2025, before Member Seaton, who issued a Certificate of Determination (COD) of the same date.
By consent, the Application was amended to allege that the deemed date of injury is
1 February 1993. The respondent conceded that it was the last noisy employer, pursuant to s 17 of the Workers Compensation Act 1987.The matter was remitted to the President, to be referred to a Medical Assessor for assessment of noise induced hearing loss with a deemed date of injury of 1 February 1993, to be assessed under the Table of Maims [sic: Table of Disabilities].
The COD contained four notations, relevantly that the matter was to be assessed in accordance with NAL Tables 1976 and recording the documents to be reviewed by the Medical Assessor.
The medical dispute was referred to Medical Assessor Howison, who assessed the respondent on 31 March 2025.
On 10 April 2025, Medical Assessor Howison issued a MAC, in which he assessed the respondent’s binaural high tone sensori-neural hearing loss (BHL) as 7.1%. The respondent has appealed that assessment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
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 because the Appeal Panel was of the view that it had sufficient information in the papers to enable the Appeal Panel to make its own assessment after identification of the error below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submitted that:
(a) the Medical Assessor misdirected himself in assessing occupational hearing loss at Hz where bilateral symmetrical loss was not evident, or not wholly evident. Proper consideration of the audiogram would have reasonably indicated there was bilateral symmetrical loss at 500 Hz and 3000 Hz;
(b) there was no information to support how the Medical Assessor said hearing loss at 2000 Hz and 4000 Hz ought to be included in the assessment, if the audiogram was properly considered;
(c) the Medical Assessor failed to give sufficient explanation to support his clinical reasoning;
(d) no table was included in the MAC to show the Medical Assessor’s workings;
(e) inclusive of all causes, and using the 1976 CAL Tables, its assessment of BHL is included in its submissions;
(f) it is possible and perhaps preferable to use this formula to calculate BHL in accordance with the Table of Disabilities, noted as “better ear threshold multiplied by four plus worse ear threshold divided by five”;
(g) the monaural hearing loss was calculated for the better or worse ear;
(h) the formula calculation applied to the ratings produced this result: 27.8 x 4 = 111.2, adding 36.4 = 147.6, divided by 5 = 29.5% BHL;
(i) the Medical Assessor incorrectly calculated BHL for all causes, across several different methodologies that ought to have been applied;
(j) the Medical Assessor failed to explain his clinical reasoning, particularly by failing to include a table to assist in understanding the overall calculations. The attempt to reproduce the audiogram results in table format showed the calculation errors in the MAC;
(k) the Medical Assessor misdirected himself in applying a higher rating for presbycusis than stipulated by the 1976 CAL Tables;
(l) there was no information to support how the Medical Assessor said his allowance was correct or preferable;
(m) the Medical Assessor failed to give sufficient explanation to support his clinical reasoning or the application of the presbycusis rating in the MAC;
(n) the Medical Assessor’s quantification of non-occupational hearing loss at 4.5% is not explained. What the Medical Assessor said was occupational BHL, unadjusted for presbycusis, was not explained;
(o) it was not accepted that the Medical Assessor’s interpretation for calculating this deduction was correct;
(p) based on its table, the PHL (partial hearing loss) ratings add to 22.6% BHL;
(q) the Medical Assessor’s calculations for occupational and non-occupational loss were scant and almost wholly unexplained. There was no information to support how the Medical Assessor’s calculations were correct or preferable. A sufficient explanation to support the Medical Assessor’s clinical reasoning was not included in the MAC;
(r) based on its calculations, the assessment of compensable occupational hearing loss based on the Medical Assessor’s audiogram ought to be calculated as:
BHL 29.5% less adjustment for presbycusis (13.6%) and less non-occupational hearing loss (22.6%) = - 6.7% (otherwise, nil work-related impairment), and
(s) the errors in the MAC resulted in a finding for compensable impairment that was not supported by the evidence.
In reply, the respondent submitted that:
(a) the appellant had not provided any evidentiary basis for its assertions as to the “proper construction” of the hearing loss suffered by the respondent. It appeared to have provided alternative findings to those of the Medical Assessor, without reference to suitably qualified medical opinion;
(b) the appellant had not addressed the Medical Assessor’s explanation of his findings;
(c) the Medical Assessor had provided reasons for his opinion;
(d) there did not appear to be any evidentiary basis for the tables created by the appellant. The appellant had created what it asserted was an assessment of BHL and disputed the Medical Assessor’s findings based on a table it had created;
(e) the appellant appeared to suggest that the deduction to be applied as a result of presbycusis was 13.6, as opposed to 19.5. To the extent that the appellant was suggesting the applicable deduction was the lesser of the two, with a resultant total assessment of 13.2, as opposed to the 7.1 calculated by the Medical Assessor, he did not oppose the appellant’s submission;
(f) as regards incorrect calculation of non-occupational hearing loss, the appellant appeared to rely on the assessment it had created. He repeated his previous submission, and
(g) the Medical Assessor had clearly stated that his assessment was based on the audiogram he carried out, the history and his clinical examination. There was sufficient clinical basis for his calculations.
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.
Medical assessment certificate
The parts of the MAC issued by the Medical Assessor that are relevant to the appeal are set out below.
Under “history relating to the injury”, at p 2 of the MAC, the Medical Assessor has recorded:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Wall has been aware of loss of hearing and a ringing tinnitus for about 30 years.
· Present treatment: Mr Wall has worn hearing aids for the last two years.
· Present symptoms: Deafness and tinnitus.
· Details of any previous or subsequent accidents, injuries or condition: There is a non-occupational hearing impairment of 4.5%.
· General health: Mr Wall has hypertension.
There was no history given of –
· hereditary deafness
· acute acoustic trauma
· severe head injury
· middle ear infection
· ear disease
· otalgia
· aural surgery
· military service
· ototoxic drug therapy
· ototoxic chemical exposure
· tuberculosis
· cochleotoxic infection
· other relevant serious medical conditions
· Work history including previous work history if relevant: Mr Wall gave a history of having been employed between 1984-1993 by Hardy Pastoral Company Pty Ltd as a Farm Hand exposed to the noise of uncovered tractors, chainsaws and to the noise of fencing including hammering and the driving of fence posts into the ground. Mr Wall explained that he would have to shout above this noise 6-8 hours per day to be heard by colleagues at a distance of one metre and I therefore conclude from this that he was working exposed to an 8-hour equivalent continuous A-weighted sound pressure level of LAeq 90dB(A) or above. More than two hours of exposure to this level of noise would be sufficient to be responsible for the causation of industrial deafness.
Since 1993, he has been a self-employed Farm Hand and has not been exposed to significant noise as he is now driving an enclosed tractor.
From 1967-1983, Mr Wall was employed by Dentsey Pastoral exposed to similar noise as described above. Prior to this he was a Guillotine Operator with GH Horton for four years exposed to loud noise.”
Under “findings on physical examination”, at p 3 of the MAC, the Medical Assessor has recorded:
“On examination both tympanic membranes are normal and intact and audiometry shows a bilateral high tone sensori-neural hearing loss.
Pure tone audiometry was carried out in a suitable sound treated room that has been tested and shown to meet specifications laid out in AS/NZS 1269 using a calibrated audiometer. I considered the auditory thresholds to be valid and the patient’s responses were repeatable. Please find enclosed a copy of the audiogram.”
Under “details and dates of special investigations”, at p 3 of the MAC, the Medical Assessor has recorded:
“● Report of Dr Frank Elsworth dated 19 December 2023
· Reports of Dr Sylvester Fernandes dated 19 July 2024; 21 October 2024”
Under “summary”, at p 3 of the MAC, the Medical Assessor has recorded:
“● summary of injuries and diagnoses:
Bilateral high tone sensori-neural hearing loss.
· consistency of presentation
Mr Wall’s presentation was consistent with the history given and my clinical examination.”
Under “evaluation of permanent impairment”, at p 3 of the MAC, the Medical Assessor has recorded:
“My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system: No
b. Have all body parts/systems stabilised/reached maximum medical improvement? Yes
c. If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable
d. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable.
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality: Ear”
Under “the facts on which the assessment is based”, at pp 3 and 4 of the MAC, the Medical Assessor has recorded:
“The facts on which I have based my assessment of whole person impairment [sic] are:
I based my percentage assessment of binaural hearing loss on the audiogram I carried out on 31 March 2025, the history given by the worker and my clinical examination.”
Under “reasons for assessment”, at pp 4 and 5 of the MAC, the Medical Assessor has recorded:
“a. My opinion and assessment of whole person impairment [sic]
In summary, Mr Wall has a binaural high tone sensori-neural noise induced deafness of 7.1%.
In making that assessment I have taken account of the following matters:-
o The normality of the tympanic membranes,
o The history of noise exposure,
o The shape of the audiogram.
b. An explanation of my calculations (if applicable)
Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first and only with further noise damage are the lower frequencies effected [sic] progressively gradually from the higher frequencies to lower frequencies; that is to say 1500 Hz should be affected less than 2000 Hz and 1000 Hz less than 1500 Hz and so on. The progression of hearing loss in the low frequencies needs to be clinically significant if this damage is from exposure to loud noise. Continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to have a rest period.
After consideration of the cumulative noise emission levels to which Mr Wall’s [sic] has been exposed and the shape of the audiogram, I would consider that the frequencies 2000, 3000 and 4000 Hz in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.
In my opinion Hardy Pastoral Company Pty Ltd is the last noisy employer therefore the notional date of injury is prior to 1 January 2002. Industrial deafness is therefore assessable under the Table of Disabilities rather than the WorkCover Guides. I note that the Tables [sic] of Disabilities requires the assessment of hearing impairment using the 1976 NAL Tables.
Assessment of Total Binaural Hearing Impairment
Loss of hearing left ear = 30.4%
Loss of hearing left ear after allowance for presbycusis = 11.3%
Loss of hearing right ear = 33.8%
Loss of hearing right ear after allowance for presbycusis = 12.9%
Binaural hearing loss = 31.1%
Binaural hearing loss after allowance for presbycusis = 11.6%
Assessment of Occupational Hearing Impairment
Loss of hearing left ear = 15.3%
Loss of hearing left ear after allowance for presbycusis = 7.6%
Loss of hearing right ear = 15.1%
Loss of hearing right ear after allowance for presbycusis = 7.0%
Binaural hearing loss = 15.1%
Binaural hearing loss after allowance for presbycusis = 7.1%
Assessment of Non-Occupational Hearing Impairment = 4.5%
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I note that Dr Fernandes stated that the frequencies below 2000 Hz are not included in the calculations and proceeds to say that the losses at 1500, 2000, 3000 and 4000 Hz are caused by occupationally induced hearing loss. My audiogram is not the same as the audiogram carried out by Dr Fernandes.
My audiogram is not the same as the audiogram carried out by Dr Elsworth. I note Dr Elsworth used an audiogram from a hearing aid provider and did not carry out his own audiogram.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, at p 5 of the MAC, the Medical Assessor has recorded:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) A non-occupational hearing impairment.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(ii) There is a non-occupational hearing impairment of 4.5%.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)
There is no deductible proportion.”
At p 7 of the MAC, the Medical Assessor provided the following Table 3:
MEDICAL ASSESSMENT CERTIFICATE
Table 3 – Assessment in accordance with the Table of Disabilities and 1976 CAL Tables for industrial deafness received before 1 January 2002
This certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.
Matter Number: W28663/24
Applicant: Leonard Harold Wall
Date of Assessment: 08 April 2025
Body Part
(as per Table of Disabilities)
Industrial Deafness
Injury deemed to have happened on:
01/02/1993
Percentage loss of BHI
(total BHI, as at the date of examination, from all causes – (noise, injuries, conditions and abnormalities)
Less proportion due to pre-existing injury abnormality or condition (but excluding previous claims for industrial deafness and presbycusis)
Less proportion due to Presbycusis
Total percentage loss of Industrial Deafness (including all previous claims (as per Table of Disabilities))
Hearing loss percentages
31.1
4.5
19.5
7.1
It is difficult to discern the different grounds on which the appellant relies, but it appears that they may be stated as follows.
Ground one
The Medical Assessor failed to give sufficient explanation to support his reasons for including hearing loss at 2000 Hz and 4000 Hz in his assessment.
The reasons of a Medical Assessor need not be extensive but must be sufficient to enable a court to determine whether or not it involves an error of law Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
The Medical Assessor has explained that, after consideration of the cumulative noise emission levels to which the respondent has been exposed and the shape of the audiogram, he concluded that the frequencies 2000, 3000 and 4000 Hz had been damaged by unacceptable noise levels. He had therefore used those frequencies in his calculations for noise induced hearing loss. The Medical Assessor’s audiogram differed from those of Dr Fernandes and Dr Elsworth.
The Medical Assessor has provided sufficient reasons for including the frequencies 2000, 3000 and 4000 Hz in his assessment.
This ground fails.
Ground two
The appellant submits that the Medical Assessor has not included a table to show his workings, incorrectly calculated BHL, and failed to explain his clinical reasoning.
The Medical Assessor has not provided a table to show his workings.
This ground is partly made out.
The Medical Panel accordingly performed its own calculations, and its MAC is attached to these reasons.
Ground three
The Medical Assessor made an incorrect assessment for presbycusis. The Medical Panel agrees. The proportion of loss of hearing due to presbycusis is 7.8%.
This ground is made out.
As noted, the Medical Panel has performed its own calculations, and its MAC is attached to these reasons.
Ground four
The appellant submits that the Medical Assessor has not sufficiently explained his assessment of non-occupational hearing loss.
The Medical Assessor has explained how he assessed the respondent’s occupational hearing impairment, and the reason for including in his assessment the frequencies 2000, 3000 and 4000 Hz.
The respondent’s total BHL, after allowance for presbycusis, was 11.6%, from which the Medical Assessor deducted the respondent’s occupational hearing impairment of 7.1%. The respondent’s non-occupational hearing impairment was therefore 4.5%, as recorded by the Medical Assessor.
This ground fails.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 April 2025 should be revoked and a new MAC issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | M1-W28663/24 |
Applicant: | Leonard Harold Wall |
Respondent: | Hardy Pastoral Company Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Kenneth Howison and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table 1 – Methods of assessment - Table of Disabilities and 1976 CAL Tables
| Body Part (as per Table of Disabilities) Industrial Deafness | Notional date of injury 01/02/1993 | Percentage loss of BHI (total BHI, as at the date of examination, from all causes - noise, injuries, conditions and abnormalities) | Less proportion due to pre-existing injury abnormality or condition (but excluding previous claims for industrial deafness and presbycusis) | Less proportion due to Presbycusis | Total percentage loss of Industrial Deafness (including all previous claims (as per Table of Disabilities) |
| Hearing loss percentages | 31.1 | 17.9 | 7.8 | 5.4 |
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