Holland v State of New South Wales (Illawarra Shoalhaven Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Holland v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICMP 352
APPELLANT:	Dale Holland
RESPONDENT:	State of New South Wales (Illawarra Shoalhaven Local Health District)
APPEAL PANEL
MEMBER:	Richard J Perrignon
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Henley Harrison
DATE OF DECISION:	3 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (WPI) (binaural hearing impairment); whether Medical Assessor erred in failing to calculate WPI; whether his finding that hearing loss was not noise-induced was beyond his power; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Mr Holland, appeals from the Medical Assessment Certificate of Medical Assessor Howison (MA) dated 4 December 2023. In effect, he assessed a 0% whole person impairment (hearing loss) as a result of injury on 10 January 2019 (deemed date), on the basis that the worker’s binaural hearing loss did not result from exposure to noise.
He also expressed a non-binding opinion that, as Mr Holland did not suffer from noise-induced hearing loss, hearing aids were not reasonably necessary as a result of injury. That opinion was not referred to this Appeal Panel by the President’s delegate on 6 May 2024, as the opinion is not a matter that is conclusively presumed to be correct, and is not susceptible to appeal.
The appellant says that, in finding that hearing loss was not caused by noise, the MA exceeded his power, because that is a finding as to injury, which lies within the exclusive jurisdiction of the Personal Injury Commission.
The Appeal Panel conducted a preliminary review of Medical Assessor Howison’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

The appellant’s submissions may be summarised briefly as follows.
(a)    These proceedings were commenced in the Commission in circumstances where liability to pay compensation for whole person impairment and the for cost of hearing aids was disputed by the insurer on the basis that the losses were not caused by exposure to noise in the respondent’s employ, and they were time-barred.
(b)    At hearing, the parties consented to a determination issued by the Member, which resolved the liability issues in favour of the applicant (now, the appellant).
(c)    By his Certificate of Determination, the Member remitted the matter to the President for referral to a MA to assess whole person impairment as a result of injury on 10 January 2019 (deemed date), the body system for assessment being identified as hearing loss, and for the expression of opinion as to whether hearing aids were reasonably necessary.
(d)    The referral to the MA included a request to determine the ‘nature’ of the hearing loss. That was an administrative error.
(e)    The MA found that the hearing losses identified were not caused by noise exposure, notwithstanding the contrary opinion expressed by Dr Tamhane, whose evidence was relied on by the appellant.
(f)    In making this finding, the MA erred, because there “was no scope for [him] to determine the nature of the hearing loss – liability for hearing loss was conceded as reflected in the determination”.
In brief summary, the respondent submits as follows.
(a)    The grounds of appeal are reducible to the proposition that the MA fell into demonstrable error by “failing to assess the applicant’s hearing loss and by failing to provide his opinion as to the reasonable necessity for hearing aids to the applicant”.
(b)    In urging the Appeal Panel to prefer the evidence of the worker’s independent expert, Dr Tamhane, the appellant is merely “advocating for a particular (different) result, rather than demonstrating an error in the Medical Assessment Certificate.”
(c)    The MA found that the measured hearing loss was not work-related, that its cause was unknown, and that it may be due to otosclerosis.
(d)    His reasons included:
(i)the fact that “Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies”, which was not reflected in the audiogram;
(ii)his observation that noise exposure in the respondent’s employ was “not sufficient to cause industrial deafness”, and
(iii)the fact that Mr Holland had not noticed hearing loss till after he had ceased employment.
(e)    His findings agreed with those of Dr McSwiney, upon whose opinion the insurer relied.
(f)    He was not bound to find that all symptoms were work-related.
(g)    He was required to his explain his reasoning, and did so.

Reasoning of the Medical Assessor

The MA took a history at [4] that Mr Holland had worked for the respondent from 1979 to 2019, working for five or six years as a post-mortem assistant and concurrently as a plaster cutter for orthopaedic surgeons, then as a cleaner and wardsman for 8.5 years and 10 years respectively. The worker told him that, as a post-mortem assistant, he was exposed to the noise of a medical saw for 10 minutes, three times per day; that as a plaster cutter, he was exposed to the noise of an oscillating plaster saw for 10 minutes per day (during which time he would cut off four plasters); and that as a cleaner and wardsman he was not exposed to noise. This differed from the worker’s evidence at [5] of his statement that he used the oscillating plaster saw for about five to six hours per day.
The MA reasoned at [4] as follows:
“Mr Holland would need to be exposed to 94 dB for one hour to cause industrial deafness. I do not believe that the plaster saw or the post-mortem saw would produce noise sufficient to reach this level.”
He added – emphasis added:
“Mr Holland also worked as a Fire Manager and for two minutes approximately twice per day he was exposed to the noise of cardiac alarms as well as the noise of the fire panel. I also consider that this noise was not sufficient to cause industrial deafness.
I therefore do not consider Illawarra Shoalhaven Local Health District to be a noisy employer. Mr Holland has not worked since 2019.”
The audiogram attached to his Medical Assessment Certificate demonstrates hearing losses in each ear at frequencies from 500 cycles per second to 4000 cps, including but not limited to sensorineural loss. This data is sufficient to calculate hearing loss at the various frequencies, and any resulting whole person impairment. That calculation would have been desirable, but was not necessary in this case, having regard to the ultimate findings that the MA made at [9] and [10], which are detailed to below.
At [5], he interpreted his audiogram as follows:
“… audiometry shows a bilateral asymmetrical sensori-neural hearing loss.”
At [7], he diagnosed “Bilateral high tone sensori-neural hearing loss”, consistently with the audiogram.
At [9], he made the central finding the subject of appeal:
“Mr Holland does not have industrial deafness”.
At [10a], he explained:
“In my opinion, Mr Holland does not have industrial deafness. The cause of Mr Holland’s bilateral high tone sensori-neural hearing loss is unknown and may be due to otosclerosis.”
And at [10b]:
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies. In my opinion, Mr Holland’s exposure to loud noise with Illawarra Shoalhaven Local Health District was not sufficient to cause industrial deafness.”
This discloses the path of reasoning which led to the central finding at [9]. The MA reasoned that binaural hearing impairment was not work-related because:
(a) the shape of the audiogram was inconsistent with the shape produced by noise-induced hearing loss, because it was not “bilaterally symmetrical and progressive from the low to the high frequencies”, and
(b) the extent and duration of noise exposure experienced by the worker in the course of his employment, as related by him to the MA, was insufficient to cause hearing loss.
The task of the MA was to assess the degree of binaural hearing impairment and to determine what part of it, if any, was caused by injury. Medical assessors routinely examine the shape of an audiogram (at least so far as it describes sensori-neural loss) to determine whether its shape is consistent with an audiogram produced by noise-induced sensori-neural hearing loss, in order to determine what part of the hearing loss, if any, is noise-induced. That is part of their proper function, and lies within their power.
In this case, Dr Howison found that the shape of the audiogram was inconsistent with noise-induced hearing loss. In our view, having regard to the sensori-neural losses identified in the audiogram, that conclusion was reasonably open to him, because the measured sensory-neural losses were not “bilaterally symmetrical and progressive from the low to the high frequencies”.
That conclusion alone justified a finding that no part of the measured impairment resulted from injury.
The making of that finding was well within his power, and formed a necessary part of the task of a MA.
Different considerations apply to his reasoning with respect to the evidence of noise exposure in the workplace. In the case of hearing loss caused by a gradual process, a worker does not have to prove that the loss was caused by employment with a particular respondent. Compensation is payable by “the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice [of injury]”: s 17, Workers Compensation Act 1987 – emphasis added. It is sufficient that the tendencies, incidents or characteristics of the employment were of such a type which could give rise to the hearing loss in fact suffered: Shire Council v Lobley (1995) 12 NSWCCR 52; Callaby v State Transit Authority (2000) 21 NSWCCR 216.
The MA’s finding that there was insufficient noise in the employ of the respondent to cause hearing loss was, in effect, a finding that the employment concerned did not have the tendencies, incidents or characteristics required.
Such a finding could form the basis for a determination by the Commission as to injury, at least where liability is disputed. However, in this case, the Commission did not make a determination as to injury. It did not need to, because the respondent consented to the referral for assessment. The Certificate of Determination issued on 21 September 2023 merely remitted the matter, by consent, to the President for referral for assessment of hearing loss, and for an opinion as to whether hearing aids were reasonably necessary as a result of injury. The Certificate of Determination did not include a determination that employment with the respondent had the tendencies, incidents or characteristics sufficient to give rise to a real risk of hearing loss.
The finding of the MA was not contrary to one made by the Commission. It was relevant to his assessment and, in our view, within his power, because it formed part of his task of determining what part, if any, of the measured sensori-neural loss as disclosed in the audiogram resulted from noise exposure.
Even if some error had affected the finding with respect to the duration of noise exposure, it would make no difference to the outcome, because the finding that hearing loss was not noise-induced is sufficiently supported by the shape of the audiogram itself, which is inconsistent with the shape of audiograms in the case of noise-induced hearing loss.
At [10c], the MA agreed with Dr McSwiney (independent expert for the insurer) that Mr Holland had not noticed hearing loss until he had left his employ with the respondent, but that appears after the findings extracted above, and does not appear to have formed part of his reasons for making them. His finding that losses were not noise-induced was amply supported without it.
We can identify no error.

Conclusion

For the reasons given, the Medical Assessment Certificate of Medical Assessor Howison is confirmed.
Noting the observation made by the President’s delegate on 6 May 2024 at [9] of her reasons that “The claim for hearing aids remains outstanding and must be referred to a Member for determination following the outcome of the appeal”, the Registry is requested to list the matter before a Member of the Commission for further determination.

[2024] NSWPICMP 352

3 June 2024