Howarth v Skilled Engineering Pty Ltd
[2021] NSWPICMP 38
•31 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Howarth v Skilled Engineering Pty Ltd [2021] NSWPICMP 38 |
| APPELLANT: | Ron Howarth |
| RESPONDENT: | Skilled Engineering Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Paul Niall Dr Robert Payten |
| DATE OF DECISION: | 31 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of industrial deafness claim; appellant worker alleged assessment made on basis of incorrect criteria and demonstrable error in respect of the exclusion of hearing loss below 1.5 kHz and the assessment of tinnitus of 2%; Held- appellant worker was exposed to loud noise over a period of 37 years but the severity and duration of exposure would have varied in the different positions; it was open to the AMS, taking into account the audiogram, history of exposure including duration and severity, and the other medical opinions, not to include the losses at 0.5 and 1.0 kHz in his assessment of noise induced hearing loss; agreed that the loading for tinnitus of 2% was appropriate; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 October 2020 Ron Howarth (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by
Dr Kenneth Howison, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 18 September 2020.The respondent to the Appeal is Skilled Engineering Pty Ltd (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
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 Workers compensation medical dispute assessment guidelines 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 Workers compensation medical dispute assessment guidelines.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of hearing loss as a result of the injury on 1 January 2003 that occurred in the course of his employment as a labourer with the respondent.
The matter was referred to the AMS, Dr Kenneth Howison, in a Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 21 October 2020 for assessment of whole person impairment (WPI) of hearing loss as a result of the injury on 1 January 2003 (deemed).
The AMS examined the appellant on 10 September 2020. He assessed current binaural hearing loss of 18.4 % or 10% WPI.
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 Workers compensation medical dispute assessment guidelines.
The appellant did not request that he be re-examined by an AMS, who is a member of the Appeal Panel.
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 there was sufficient evidence by way of medical reports and clinical investigations on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS 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.
The appellant’s submissions lodged with Application to Appeal Against the Decision of Approved Medical Specialist included the following:
(a) The AMS took a history that the appellant had been exposed to significant noise from 1966 to 2003.
(b) The AMS assessed the binaural hearing loss only taking into account the hearing losses found on his audiogram at the frequencies 1.5, 2.0, 3.0 and 4.0 kHz. The AMS also added a loading for severe tinnitus of 2% binaural hearing loss.
(c) The AMS made a demonstrable error by failing to include the losses at the lower frequencies of 0.5 and 1.0 kHz.
(d) The AMS should have provided a tinnitus loading of 3%.
(e) When the audiogram obtained by the AMS is compared to his reasoning with respect to his calculations, there is no apparent reason given by the AMS as to why frequencies at 0.5 and 1.0 kHz have not been included in the calculation of noise induced hearing loss.
(f) The AMS made a demonstrable error in failing to give adequate reasons for his decision to exclude the loss at lower frequencies and failing to include the loss at the lower frequencies.
(g) The AMS has failed to provide adequate reasons for not including all frequencies in the calculation of noise induced hearing loss when the explanation of his calculations supports the contention that all frequencies should have been included.
(h) The audiogram obtained by the AMS was classically indicative of noise induced hearing loss. An examination of the audiogram showed that the entire audiogram, at all frequencies, was bilaterally symmetrical and progressive, fitting the definition of what the AMS explained constituted noise induced hearing loss. The only exception here was a negligible 5dB difference at the frequencies of 1.5 and 3.0 kHz which the AMS had already accepted to be due to noise induced hearing loss, and also a flat configuration in the left ear at 3.0 to 4.0 kHz which the AMS also accepted to be due to noise induced hearing loss.
(i) In the left ear there was an increasing los of hearing from 0.5kHz upwards, with the exception of 3.0 and 4.0 kHz which the AMS accepted as noise induced hearing loss. In the right ear there was an increasing loss of hearing from 0.5 kHz upwards to 4.0 kHz. The configuration of the audiogram was therefore consistent with noise induced hearing loss. There was no level at which the threshold recorded at a lower frequency was higher than the threshold recorded at a higher frequency. In a person with the history of noise exposure of the appellant, the proper interpretation of the audiogram was that all of the losses at all frequencies should have been considered to be due to noise exposure.
(j) The explanation given by the AMS for not including the losses at 0.5 and 1.0 kHz was not consistent with the audiogram findings nor with the definition of noise induced hearing loss the AMS provided at paragraph 10.b of the MAC. The AMS failed to give reasons as to why the progressive and bilaterally symmetrical loss at 0.5 and 1.0 kHz was not noise induced hearing loss. The AMS failed to give reasons for this inconsistency in his reasons. Both the lack of consistency and failure to give reasons constitute demonstrable error.
(k) When interpreting an audiogram it is imperative to consider the history of noise exposure. The greater the exposure the greater the likelihood that the lower frequencies have been affected.
(l) The AMS took a history of 37 years of noise exposure that warrants inclusion of the lower frequencies, consistent with the decisions in Shone v Country Energy (2007) NSWWCCMA 18 (Shone) and Fox v Deniliquin Council (M1-2487/15) (Fox).
(m) The AMS should have made a loading for tinnitus of 3%. The appellant in his statement said that he heard high pitched buzzing noise in both of his ears that was constant with his left ear worse that the right. The appellant stated that the tinnitus made it difficult for him to concentrate especially conversing in person, or on the telephone, socialising or watching television. The appellant said his sleep was also affected. The AMS noted that “His tinnitus affects both his sleep and concentration and therefore, in my opinion, can be considered to be severe tinnitus”.
(n) The appellant submits that constant severe tinnitus which affects both sleep and concentration warrants a loading of 3%. Dr Fagan [sic] provided a loading of 3% in his report.
(o) The MAC should be revoked and a new MAC issued including losses at 0.5 and 1.0 kHz and a tinnitus loading of 3%.
The respondent’s submissions attached to the Notice of Opposition Against the Decision of Approved Medical Specialist include the following:
(a) There were no demonstrable errors in the MAC.
(b) The references in the MAC to Dr Fagan should have been references to
Dr Corlette, but nothing seems to turn on this typographical error.(c) The appellant submitted that the AMS should have included losses from 0.5kHz upwards, when not even Dr Corlette included the 0.5kHz frequency level.
(d) The AMS must rely on his own audiogram findings. The AMS provided reasons in Part 10b of the MAC where he states: “After consideration of the cumulative noise emission levels to which Mr Howarth has been exposed to and the shape of the audiogram, I would consider that the frequencies1500 Hz above in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.”
(e) In Part 10c of the MAC the AMS stated: “My audiogram is not the same as the audiogram carried out by Dr Harrison. I disagree with him excluding the frequency 1500 Hz … My audiogram is not the same as the audiogram carried out by Dr Fagan. I disagree with Dr Fagan for accepting that the frequency 1000 Hz has been damaged by loud industrial noise. In my opinion, the frequencies below 1500 Hz have not been damaged by unacceptable noise levels.[sic]”
(f) The appellant’s submission that the hearing loss found by the AMS at 500Hz and 1000Hz is “progressive and bilaterally symmetrical” was, by itself, a simplification of what is required. The losses found by the AMS at those levels were quite minor. Dr Fagan [sic] found a 1.4% BHI at the 500Hz level and did not include that in his assessment of occupational BHI. Dr Corlette found a much higher loss of 8% at the 1000Hz level, and for that reason, when looking at his overall audiogram findings, he included the loss at that level in his assessment of occupational BHI.
(g) The AMS was not only entitled to but was required by Guidelines at 9.1 to rely on his findings on his clinical assessment. The AMS met that obligation and provided adequate reasons for excluding the loss below 1500Hz. In doing so, he has applied his clinical judgment, which he was also required to do by the Guidelines.
(h) In regard to the tinnitus assessment, the AMS stated: “Mr Howarth has been aware of loss of hearing and a buzzing tinnitus, more marked in the left ear for about twenty years. His tinnitus affects both his sleep and concentration and therefore, in my opinion, can be considered to be severe tinnitus. I disagree with Dr Harrison in making an allowance of 1% for severe tinnitus, as I feel from the history, I obtained that an allowance of 2% is indicated. I disagree with Dr Fagan in making an allowance of 3% for severe tinnitus, as I feel an allowance of 2% is indicated.”
(i) There are no set criteria for assessing the extent of severe tinnitus in Chapter 9 of the Guidelines. Guideline 9.11 provides that “Assessment of severe tinnitus is based on a medical specialist’s assessment”
(j) The AMS has provided his assessment of 2% for severe tinnitus. The history noted in regard to the appellant’s tinnitus in the AMS MAC, was consistent with the history in the appellant’s statement dated 21 January 2020.
(k) The history noted by Dr Corlette, in his report of 6 November 2018 (at page 13 of the ARD) was: “… reports constant tinnitus in both ears. Sleep, induction is sometimes affected as is his concentration whilst conversing in person or on the telephone, socialising or watching TV”.
(l) In his report of 28 June 2019 (at p6 of the Reply) Dr Harrison noted: “His left tinnitus irritates him and can affect his concentration. He has trouble falling asleep and at such times he notices his tinnitus which he thinks may interfere with his sleep induction.”
(m) The AMS is presumed to have taken all of the above into account when assessing firstly, whether the tinnitus is “severe”, and if so, where it ranks in the scale allowed. He assessed it at 2%, compared to Dr Corlette’s 3% and
Dr Harrison’s 1%. The AMS was obliged to apply his own clinical judgment in assessing the extent of severed tinnitus. There was no demonstrable error in the AMS assessment of 2% for severe tinnitus, on the evidence.(n) There were no demonstrable errors in the MAC with respect to the frequency levels included in the assessment of occupational noise induced hearing loss or with respect to the assessment of severe tinnitus.
(o) The AMS MAC dated 18 September 2020 should be confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the delegate has determined that he is satisfied that a ground of appeal under s 327(3)(c) and (d) is capable of being made out.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel was satisfied that the AMS carried out a comprehensive and careful examination of the appellant, obtained a reliable audiogram and an accurate and detailed history of his employment dating back many years, as well as a detailed and accurate history of the injury and onset of symptoms and subsequent related events and treatment.
Assessment of the hearing loss
The AMS, under “Work history including previous work history if relevant”, noted:
“Mr Howarth gave a history of having been employed between 1993-2003 by Skilled Engineering Sydney Pty Ltd as a labourer. In this employment he describes being exposed to the noise of machinery in various places of employment by this labour hire company. Mr Howarth was exposed to the noise of steel guillotines, steel punches, steel presses and other machinery used in the manufacture of kitchen sinks and laundry tubs. On other occasions he worked on construction sites and was exposed to loud noise.
Mr Howarth was then employed from 2003-2013 by CBC Bearings as astoreman/forklift driver and was not exposed to loud noise.
Since 2013, Mr Howarth has been employed by Statewide Bearings as a
storeman/forklift driver and is not exposed to loud noise.
From 1986-1993, Mr Howarth was employed by Tomalco as a labourer exposed to the noise of hammering and power tools.
He was previously a truck driver from 1966-1986 with various companies and wasexposed to some noise.”
Under “Summary of injuries and diagnoses” the AMS noted: “Bilateral high tone sensori-neural noise induced hearing loss.”
Under “Reasons for assessment” the AMS noted:
“In summary, Mr Howarth has a binaural high tone sensori-neural noise induced hearing loss of 18.4%, which represents a whole person impairment of 10.0%. This hearing loss is permanent and has reached maximum medical improvement (i.e. when the hearing loss is well stabilised and is unlikely to change substantially in the next year with or without medical treatment).
In making that assessment I have taken account of the following matters:-
·The normality of the tympanic membranes,
·The history of noise exposure,
·The shape of the audiogram.
Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies. After consideration of the cumulative noise emission levels to which Mr Howarth has been exposed to and the shape of the audiogram, I would consider that the frequencies 1500 Hz above in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.
As the notional date of injury is after 1 January 2002, calculations have been made based on the National Acoustic Laboratory Tables of 1988. An addition of 2% for severe tinnitus is indicated.”
In commenting on other medical opinions and findings at 10c of the MAC, the AMS wrote:
“My audiogram is not the same as the audiogram carried out by Dr Harrison. I disagree with him excluding the frequency 1500 Hz as not being damaged by loud industrial noise. I disagree with Dr Harrison in making an allowance of 1% for severe tinnitus, as I feel from the history, I obtained that an allowance of 2% is indicated.
My audiogram is not the same as the audiogram carried out by Dr Fagan. I disagree
with Dr Fagan for accepting that the frequency 1000 Hz has been damaged by loud
industrial noise. In my opinion, the frequencies below 1500 Hz have not been
damaged by unacceptable noise levels. I disagree with Dr Fagan in making an
allowance of 3% for severe tinnitus, as I feel an allowance of 2% is indicated..”
Failure to include the loss at the lower frequencies
The appellant submitted that the AMS made a demonstrable error, or otherwise made the assessment on incorrect criteria, by failing to include the loss at the lower frequencies.
The appellant argued that the AMS: (a) failed to give adequate reasons for his decision to exclude the loss at lower frequencies, and (b) failed to include the loss at the lower frequencies.
It was accepted in Shone that it can be appropriate to include hearing loss at lower frequencies where the worker was employed in a noisy environment on a regular basis for a long period of time ranging from 28 years to 40 years.
In this case the appellant was employed for 10 years by the respondent between 1993 and 2003 where he was exposed to the noise of steel guillotines, steel punches, steel presses and other machinery. Between 2003 and 2013 the appellant was employed by CBC Bearings as a storeman and forklift driver and was not exposed to loud noise. From 1986 to 1993 the appellant was employed by Tomalco as a labourer and exposed to the noise of hammering and power tools. From 1966 to 1986 the appellant was employed by various companies as a truck driver and exposed to some noise. The appellant was employed in noisy environments for about 37 years but the severity and duration of exposure would have varied in the different positions.
The decision of Shone provided at [19] that frequencies below 2000Hz can be taken into account depending on the facts in each individual matter including the nature and duration of occupational noise exposure and the extent of all the hearing losses including those at the lower frequencies below 2000 Hz. It also provided at [24] that neither the AMA 5 or the Guidelines required that hearing losses at low frequencies (500, 1000 and 1500 Hz) not be considered.
The Appeal Panel accepts that the decision in Shone is authority for the proposition that all frequencies must be considered and not automatically excluded from consideration. The Appeal Panel accepts that it cannot assume that loss at 500, 1000 and 1500 Hz is to be disallowed on the basis that these frequencies are not generally involved in noise induced hearing loss. Any such assumption is inconsistent with the medical criteria set out in Chapter 9 of the Guidelines. Whether these frequencies should be taken into account when assessing occupational noise-induced hearing loss depends on the facts in each individual matter including the nature and duration of occupational noise exposure and the nature and extent of all the hearing losses including those below 2000 Hz.
However, the decision in Shone does not automatically mean that the lower frequencies are to be included in the calculation of industrial deafness, rather lower frequencies are to be included if the audiometric configuration is consistent with industrial deafness and if there is a long period in noisy employment. In this matter the appellant has a long history in noisy employment but the severity of noise exposure would have varied in the different positions. The other question was whether the audiometric configuration at the lower frequencies was consistent with industrial deafness.
The AMS expressed the opinion that the frequencies below 1500 Hz had not been damaged by unacceptable noise levels. The AMS took into account the normality of the tympanic membranes, the history of noise exposure and the shape of the audiogram.
The Appeal Panel carefully considered the submissions made by the parties and the evidence in this matter, in particular, the audiogram obtained by the AMS. For the loss at the lower frequencies to be included in the assessment of noise-induced hearing loss, not only must the assessor be satisfied as to the nature and duration of occupational noise exposure, but also as to the nature and extent of all the hearing losses including those below 2000Hz.
The Appal Panel reviewed the audiogram attached to the MAC. The nature and extent of the hearing losses were shown in the audiogram
The Appeal Panel agreed with the view expressed by the Appeal Panels in Peter Thomas Richardson v Hydro Aluminium Kurri Kurri Pty Ltd [2013] NSW MA 56 (Richardson) and Fox that the effect of exposure to noise on the resultant audiogram is a matter for clinical judgment. In Richardson, the Appeal Panel said at [20]:
“The decision concerning whether lower frequency losses should be included in an assessment of noise induced loss is a matter for clinical judgment. Relevant to that judgment is the extent and duration of noise exposure. This means considering both the intensity and volume of noise to which the worker is exposed and the duration of time over which the exposure occurred. It is also relevant to consider the extent of the losses in the lower frequencies in relation to the hearing losses in the higher frequencies, to determine whether they are consistent with being noise induced.”
The Appeal Panel did not accept that the AMS failed to give adequate reasons for his decision to exclude the loss at lower frequencies (0.5 and 1.0 kHz). While his reasons were concise, he stated that he had taken into account the normality of the tympanic membranes, the history of noise exposure and the shape of the audiogram and expressed the opinion that the frequencies below 1500 Hz had not been damaged by unacceptable noise levels.
The appellant also argued that the AMS failed to include the loss at the lower frequencies and that such failure was an error.
The losses found by the AMS at the lower frequencies (0.5 and 1.0 kHz) were quite minor. There was a progressive slight loss from the lower to the higher frequencies. Dr Corlette found 1.4% BHI at the 0.5 kHz level, and did not include that in his assessment of occupational BHI. Dr Corlette found a much higher loss of 8.0% at the 1.0 kHz level, and it was likely that because of this higher level of loss when looking at his overall audiogram findings, he included the loss at that level in his assessment of occupational BHI. The AMS found 3.4% BHI at the 0.5 kHz level, and 4.2% at the 1.0 kHz level.
Dr Henley Harrison, in his report dated 28 June 2019, wrote:
“The diagnosis is bilateral sensori-neural deafness partly due to occupational deafness and partly due to another cause or causes probably at least partly constitutional. Not all of the hearing loss is due to occupational noise exposure because there is excessive involvement of the lower frequencies. In an audiogram of established occupational deafness, the hearing loss slopes downwards with a curve convex upwards from left to right except for some possible preservation of the highest frequencies i.e. above 3000 cycles per second (as demonstrated in the accompanying figure from the book "Medical-Legal Evaluation of Hearing Loss" by Dr Robert Dobie - NIPTS means: "noise-induced permanent threshold shift" which is industrial deafness). Except in cases of extremely long and severe noise exposure the lowest frequencies are preserved. Mr Howarth's audiogram does not have these characteristics.
Hence it is not really suggestive of industrial deafness. On the right side, the hearing loss is the same for the frequencies 1000, 1500 and 2000 cycles per second which is strongly against the frequencies below 2000 cycles per second being due to occupational noise exposure. He has however been subject to what sounds like fairly significant noise exposure and I believe, on the balance of probability, he has suffered some hearing loss due to it. So I have apportioned the occupational hearing loss to the frequencies 2000 cycles and above…”The Appeal Panel were satisfied that the AMS had considered all the factors relevant to the question of whether the loss at the lower frequencies (0.5 and 1.0 kHz) should be included in the assessment of noise induced loss. Noting that the decision concerning whether lower frequency losses should be included in an assessment of noise induced loss is a matter for clinical judgment, the Appeal Panel were of the view that it was open to the AMS, taking into account the audiogram, history of exposure including duration and severity, and the other medical opinions, not to include the losses at 0.5 and 1.0 kHz in his assessment of noise induced hearing loss. The Appeal Panel was not persuaded that the AMS made a demonstrable error or applied incorrect criteria in not including the losses at 0.5 and 1.0 kHz in his assessment of noise induced hearing loss
Tinnitus
The appellant submitted that the AMS made a demonstrable error or otherwise applied incorrect criteria in not applying a 3% loading for tinnitus.
The AMS under “Social activities/ADL” noted:
“His tinnitus affects both his sleep and concentration and therefore, in my opinion, can be considered to be severe tinnitus.”
The AMS in considering the other medical opinions disagreed with Dr Harrison in making an allowance of 1% for severe tinnitus, as the AMS felt from the history that he obtained an allowance of 2% was indicated. The AMS also disagreed with Dr Fagan [sic] who made an allowance of 3% for severe tinnitus as the AMS felt that an allowance of 2% was indicated.
The appellant, in his statement dated 11 July 2019, stated:
“13.1 hear a high pitched buzzing noise in both of my ears which is constant.
My left ear is worse than my right.
14. The tinnitus I suffer from makes it very difficult for me to concentrate. This
is especially so when I am conversing in person or on the telephone,
socialising or watching television. The buzzing sound takes the focus
away from what I am trying to concentrate on. My sleep is also affected.”
The Guidelines at Part 9.11 allow a loading of up to 5% BHL for severe tinnitus and provide that “Assessment of severe tinnitus is based on a medical specialist’s assessment.”
Dr Peter Corlette, in his report dated 6 November 2018, noted that the appellant reported constant tinnitus in both ears. He wrote: “Sleep induction is sometimes affected as is
his concentration whilst conversing in person or on the telephone, socialising or watching TV.
He first noticed it 28 years ago.” Dr Corlette believed that a loading of 3% binaural hearing loss for severe tinnitus should be made.
Dr Henley Harrison, in a report dated 28 June 2019, noted: “His left tinnitus irritates him and can affect his concentration. He has trouble falling asleep and at such times he notices his tinnitus which he thinks may interfere with his sleep induction.” Dr Harrison believed that the appellant’s tinnitus was severe and made an allowance of 1% for it.
The Appeal Panel was satisfied that the AMS’s assessment of tinnitus was based on the history provided in his examination of the appellant. The statement of the appellant was consistent with the history given to the AMS and to Drs Corlette and Harrison. The Appeal Panel considered that the AMS was entitled to make that assessment of an allowance of 2% for tinnitus based on his own clinical judgement and in accordance with Clause 9.11 of the Guidelines.
The Appeal Panel was satisfied that the AMS, in making an allowance of 2% for tinnitus made no error and did not apply incorrect criteria. The Appeal Panel agreed with the AMS that the tinnitus was severe and an allowance of 2% for tinnitus was appropriate in this case.
The Appeal Panel can therefore find no error in the MAC in excluding the losses at 1000Hz and below and making a 2% allowance for tinnitus. Accordingly, the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 September 2020 should be confirmed.
Carolyn Rimmer
Member
Dr Paul Niall
Medical Assessor
Dr Robert Payten
Medical Assessor
31 March 2021
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