Ian Holland t/as Heytman & Holland v Husejnovic

DETERMINATION OF APPEAL PANEL
CITATION:	Ian Holland t/as Heytman & Holland v Husejnovic [2023] NSWPICMP 643
APPELLANT:	Ian Holland t/as Heytman & Holland
RESPONDENT:	Mujo Husejnovic
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	6 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; noise induced hearing loss; no deduction appropriate for period of self-employment; Commissioner for Railways v Bain, Rico v Roads and Traffic Authority, Blayney Shire Council v Lobley, A & G Engineering Pty Ltd v Civitarese, and OneSteel Ltd v Devine considered and applied; on the evidence, no deduction appropriate for overseas military service; Pereira v Siemens Limited referred to; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 September 2023 Ian Holland t/as Heytman & Holland (Mr Holland) lodged an Application to Appeal Against the Decision of a Medical Assessor in respect of an injury suffered by Mujo Husejnovic. The medical dispute was assessed by Dr Brian Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 August 2023.
Mr Holland 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 was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Husejnovic was employed by Mr Holland as a painter from 1999 to 2006 in noisy employment and has since retired. He was self-employed as a painter from 1979 until 1999 and before that was employed as a painter between 1974 and 1979. Mr Husejnovic did other work after he came to Australia in 1963. Before he immigrated, he spent about two years in the Yugoslav army.
The Medical Assessor assessed binaural hearing loss of 48.9%. He deducted the loss suffered at 500 and 1000 Hz, representing 13.3%, as being non-work related. He deducted 14.4% for presbyacusis based on Mr Husejnovic’s age and made no allowance for tinnitus. His final assessment was 21.2% binaural hearing loss which converts to 11% whole person impairment. The Medical Assessor did not make a deduction under s 323 of the 1998 Act in respect of occupational noise exposure outside New South Wales, saying that a deduction of one-tenth would be against the medical evidence, the exposure being minor.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Mr Husejnovic to undergo a further medical examination because the assessment made by the Medical Assessor does not disclose an error.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Holland submitted that the Medical Assessor failed to make deductions under s 323 of the 1998 Act in respect of Mr Husejnovic’s period of self-employment and in respect of his period of military service.
Mr Holland said that it is clear that a proportion of hearing loss must be due to the period of self-employment. He referred to the decision in Blair v Wyred Pty Ltd[1] (Blair) where the appeal panel noted that the rate of hearing loss due to chronic noise, exposure is greatest during the first 10 to 15 years of exposure and said it was probable that the worker’s noise exposure during “this period” cause noise induced hearing loss exceeded an assessment made on a pro rata basis. On that basis, Mr Holland said that a substantial deduction under s 323 was warranted and that it was not precluded by s 68(4) of the 1987 Act.
[1] [2022] NSWPICMP 526.
In respect of Mr Husejnovic’s period in the Yugoslav army, Mr Holland submitted that the Medical Assessor had not provided reasons for not making a deduction under s 323.
In reply, Mr Husejnovic submitted that no deduction was appropriate because there was no prior evidence of hearing loss, referring to Pereira v Siemans Limited[2] (Pereira). Mr Husejnovic said that a mere finding of noisy employment does not establish causation though if s 17 of the 1987 Act applies, a finding of noisy employment is sufficient to establish liability. Mr Husejnovic’s injury was suffered on 30 June 2006 and the loss suffered before that date forms part of the compensable injury.
[2] [2015] NSWSC 1133.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[3] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[3] [2006] NSWCA 284.
The determination of this appeal turns on an understanding of the special provisions in s 17 of the 1987 Act which apply to the assessment of compensation for noise-induced hearing loss.
Section 17 of the 1987 Act provides:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a)for the purposes of this Act, the injury shall be deemed to have happened—
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c)compensation is payable by—
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii)where the worker was not so employed—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,
…”
A series of High Court and Court of Appeal authorities explain the operation of s 17 and its predecessors. Those decisions have been followed in Presidential decisions in the Workers Compensation Commission.
In the High Court, Barwick CJ said in Commissioner for Railways v Bain[4] that the predecessor of s 17 deemed noise-induced hearing loss to have happened “in one blow”. It was therefore an error to seek to apportion the loss between various periods of work.
[4] (1965) 112 CLR 246.
In the Court of Appeal in Rico Pty Ltd v Roads and Traffic Authority[5] Sheller JA said:
“The legislative scheme for awards of compensation for boilermaker’s deafness proceeds on the following assumptions or fictions:
1.     The condition known as ‘boilermaker’s deafness’ is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s 17(2)).
2.     A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s 17(1)).
3.     In the language of Barwick CJ, in Commissioner for Railways v Bain the injury is taken to have happened ‘as it were, in one blow’. If the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s 17(1)(a)”
[5] (1992) 28 NSWLR 679, 689-690.
In Blayney Shire Council v Lobley[6] the Court of Appeal explained that s 17 was not concerned with true causation but deemed the loss to have happened at one time. It required the last noisy employer to pay compensation whether or not that employment actually caused the loss. Cole JA, with whom the other members of the court agreed, said:
“It follows from these authorities [Smith v Mann[1932] HCA 30; (1932) 47 CLR 426; Tame v Commonwealth Collieries Pty Ltd(1947) 47 SR (NSW) 269 and Commonwealth v Bourne[1960] HCA 26; (1960) 104 CLR 32] that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.”
[6] (1995) 12 NSWCCR 52.
The effect of s 17 was also summarised A & G Engineering Pty Ltd v Civitarese[7] where Beazley JA said:
“Section 17, as the appellant's case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, s 17 proceeds on a series of fictions or assumptions, upon which a worker's entitlement to recover an award under s 66 is based.”
[7] (1996) 41 NSWLR 41.
In OneSteel Ltd v Devine[8] Roche DP said:
“There are many cases where the employer who made only a minimal contribution to the actual hearing loss suffered pays all or most of the compensation awarded. However, there will be many other situations where the same employer will pay no compensation for the hearing loss caused by its employment. That is the nature of a scheme based on assumptions and fictions. It is therefore incorrect to submit that the statutory scheme requires an employer to pay compensation only for those injuries or losses suffered by the worker in that employer’s employment.”
[8] [2012] NSWWCCPD 52 at [48].
Mr Husejnovic gave notice of injury on 9 September 2022, relying on a deemed date of injury of 30 June 2006, being the last date of employment with Mr Holland. Section 17 deems the injury to have happened on that date and as the last noisy employer, Mr Holland is liable to pay compensation for the loss assessed by reference to that date. Mr Husejnovic’s entitlement to recover compensation from Mr Holland in respect of the loss assessed at the deemed date of injury would be no different if he had been employed by another legal entity between 1979 and 1999, if he had worked in non-noisy employment or if he had done no work at all.
Mr Holland relied on the statement by the medical appeal panel in Blair that the rate of hearing loss due to chronic noise exposure is greatest during the first 10 to 15 years of exposure to argue that a substantial deduction was required in respect of Mr Husejnovic’s period of self-employment. That submission does not grapple with the history of employment set out in the MAC which shows that Mr Husejnovic had worked in Australia for 16 years before commencing self employment nor does it take account of the line of authority set out above.
Section 68B of the 1987 Act deals with deductions for pre-existing injuries and conditions under the disease provisions. Section 68B(4) provides:
“(4) When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following-
(a)there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker's employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b)for the purposes of paragraph (a),
"previous relevant employment" is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).
Mr Holland also said that s 68(4) did not prevent a s 323 deduction in respect of a period of self employment. The argument was not developed in the way that would be necessary if we were to consider not applying the long line of binding appellate authority set out above. The assessment made by the Medical Assessor was consistent with that authority.
Mr Holland was Mr Husejnovic’s last noisy employer and is responsible to pay the compensation assessed by reference to the agreed deemed date of injury.

Military service

Mr Holland also argued that the Medical Assessor erred in not making a deduction under s 323 in respect of a proportion of Mr Husejnovic’s hearing loss attributable to military service in Yugoslavia.
Because the legislation does not have extraterritorial operation,[9] noise-induced hearing loss suffered overseas before working for an employer in New South Wales may give rise to a s 323 deduction. The worker in Pereira had worked for 17 years in Pakistan before working for 32 years in New South Wales. The Approved Medical Specialist (AMS) calculated the percentage of Mr Pereira’s working life referrable to the period in Pakistan and deducted that percentage of his impairment of binaural hearing loss. The approach was confirmed by a medical appeal panel.
[9] Mynott v Barnard [1939] HCA 13; 62 CLR 68
On judicial review in the Supreme Court, Garling J said in that the assessment under s 323 “is one which must be made based on fact, not assumptions or hypotheses”.[10] His Honour set out the operation of s 17, referring to Lobley and the operation of s 323 and considered assumptions made by the appeal panel including that, because the worker was exposed to a workplace in which noise was generated, he must during the period of that exposure have suffered a pre-existing injury. His Honour said:[11]
“The difficulty with such a conclusion is that there was simply no factual material which was sufficient to enable such a conclusion to be drawn. Whilst there was factual material available which described some of the work which took place in Pakistan, nowhere was there any evidence which would enable a conclusion to be drawn that the level of noise to which the plaintiff was exposed in Pakistan, was of a nature which would have, by a gradual process, resulted in a loss of hearing. Nowhere was there any material which allowed the Appeal Panel or the AMS, to conclude that the plaintiff had been exposed to an unacceptable noise level for a sufficient length of time, and of the kind of noise level which, on the probabilities, would have resulted in an injury.”
[10] At [81], referring to Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].
[11] At [100].
Referring to the one-tenth deduction provided for in s 323(2), his Honour went on:[12]
“The application of this rule of thumb deduction does not constitute fulfillment, in a hearing loss case, of this required element. As a matter of logic, the present extent of the plaintiff’s hearing loss may have been caused entirely by the plaintiff’s employment in NSW over the 32 year period. There is nothing about his present degree of whole person impairment which would, of itself and without more, enable a contrary conclusion. There was no material for example, which enabled a finding that the level of impairment from loss of hearing for the plaintiff, could not all have arisen during the 32 year period of employment in NSW.
However, the Appeal Panel and the AMS have simply assumed that by application of the straight line method of attribution of deafness, there must have been a pre-existing injury, and the degree of impairment from which the plaintiff suffers must have been contributed to by all of the pre-existing noise exposure.
This is nothing more than assumption or speculation. The conclusion is not sufficient to satisfy the obligation under s 323 of the 1998 Act to be satisfied that a pre-existing injury has contributed to the present impairment.”
[12] At [104]-[107].
Mr Husejnovic said in his statement that, while in the army for two years, he was exposed to minimal noise from firearms during training only. Dr Fagan recorded that Mr Husejnovic served full-time in the military for two years where he undertook training only intermittently and was not exposed to injurious levels of noise.
Dr Winkler obtained history that he was in the army for two years, and had weapons training. Dr Winkler said that the noise of the rifles was capable of causing noise induced hearing loss and based on that history made a deduction of one-tenth under s 323 for noise exposure in Yugoslavia and while not an employee.
The Medical Assessor said that Mr Husejnovic was in the army for two years and undertook basic rifle training. He declined to make a deduction in respect of noise exposure during that period, saying:
“In my opinion there is no s323 deduction. This is because an s323 deduction of 10% for his occupational noise exposure outside NSW would be against the medical evidence. In my opinion his occupational noise outside NSW is very minor and not material to the assessment.”

Dr Winkler’s statement that the noise of rifles can cause hearing loss is not controversial. It does not follow that minimal exposure to the noise of rifles should lead to a deduction under s 323. The Medical Assessor acted on a history consistent with that in Mr Husejnovic’s statement and Dr Fagan’s report – that his exposure to noise whilst in the army was minimal. We agree with the approach of the Medical Assessor. The only evidence was that Mr Husejnovic was exposed to minimal noise from firearms training so that there is no evidence to support a deduction under s 323.
For these reasons, we have determined that the MAC issued on 7 August 2023 should be confirmed.

[2023] NSWPICMP 643

6 December 2023