Ingledew v Cromack Transport Pty Ltd
[2022] NSWPICMP 7
•14 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ingledew v Cromack Transport Pty Ltd [2022] NSWPICMP 7 |
| APPELLANT: | Lewis Ingledew |
| RESPONDENT: | Cromack Transport Pty Ltd |
| APPEAL PANEL: | John Wynyard Dr Robert Payten Dr Henley Harrison |
| DATE OF DECISION: | 14 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against binaural hearing loss equivalent to 10% WPI; applicant hearing in right ear affected by unrelated vascular incident; Medical Assessor (MA) noted presence of tinnitus in both ears; found severe tinnitus in right ear not related, but failed to comment on the left ear tinnitus; Appeal Panel unable to infer MA’s intention regarding left ear tinnitus; applicant re-examined; Held- left ear tinnitus not severe and no loading applicable; audiogram on re-examination showed that low tone frequencies not work related; Drosd v Workers Compensation Nominal Insurer applied; MAC revoked and 9% WPI substituted. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 April 2021 Lewis Ingledew, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 March 2021.
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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). WPI is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 1 March 2021 the delegate of the Principal Registrar referred this matter to the MA for a WPI assessment caused by hearing loss on a deemed date of 1 February 2021. Mr Ingledew was employed as a truck driver between 2005 and 2013. He was born in 1952 and had become aware of a loss of hearing in both ears for about 30 years. Eight years prior to his assessment Mr Ingledew suffered a sudden right sided sensory neural hearing loss with associated tinnitus in the right ear. The MA noted that the cause for that sudden deafness was probably vascular in origin as Mr Ingledew has other vascular problems.
Mr Ingledew complained of tinnitus in both ears. The MA found there to be a binaural hearing impairment of 20% which converted pursuant to Table 9.1 to 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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested to be re-examined by a member of Appeal Panel. For the reasons given below, an appellable error was established and the appellant was accordingly re-examined by Dr Harrison of the Panel.
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.
Further medical examination
Dr Henley Harrison of the Appeal Panel conducted an examination of the worker on 2 December 2021 and reported to the Appeal Panel.
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 which 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 (Vegan) 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 appellant challenged the finding by the MA that there should be no additional BHI impairment for the presence of severe tinnitus in the left ear, or alternatively that the MA did not provide adequate reasons in that regard.
The MAC
In recording the history of Mr Ingledew’s injury, the MA said:[1]
“Mr Ingledew has been aware of loss of hearing in both ears for about 30 years. I note that eight years ago he suffered a sudden right-sided sensorineural hearing loss with associated tinnitus in the right ear. The cause for this sudden deafness was never found. In view of his other vascular problems, it is likely that this sudden loss of hearing was vascular in origin.
Mr Ingledew has tinnitus in his right ear and tinnitus in his left ear. The tinnitus in the right ear commenced at the time of sudden deafness in the right ear.• Present treatment: Mr Ingledew wears a hearing aid in his left ear and a CROS hearing aid from his right ear.
• Present symptoms: Deafness and tinnitus.”
[1] Appeal papers p 23
In explaining his calculations at [10b], the MA said:
“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 Ingledew has been exposed, I consider that the loss of hearing in the left ear is due to exposure to unacceptable noise levels and an equal amount of hearing loss should be allowed for loss of hearing in the right ear in accordance with the WorkCover Guides to the Evaluation of Permanent Impairment 4th Edition, 01 April 2016, page 44, section 9.12.
No allowance for severe tinnitus is indicated, as Mr Ingledew’s tinnitus is in the right ear and was caused by the sudden loss of hearing in the right ear eight years ago.”
SUBMISSIONS
Mr Ingledew
Mr Ingledew submitted that the MA had fallen into error by failing to deal adequately with the presence of tinnitus in Mr Ingledew’s left ear. The error was described in two ways, firstly that he failed to consider whether a loading should be given for the left sided tinnitus, and secondly, that if he did decide that no loading was applicable, he failed to give adequate reasons for that determination.
We were referred to Vegan, as to the obligation of a Panel to give adequate reasons, and Mr Ingledew relied on the principles which we have summarised therefrom above. We note in passing that the same obligation lies on an MA to give adequate reasons.[2]
[2] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13] per Adams J.
The appellant did not challenge the findings of the audiogram by the MA but nonetheless requested a re-examination in view of the error identified.
The respondent
The respondent submitted that the error alleged had not occurred. It argued that the MA had clearly identified left sided tinnitus in the portion we have reproduced above, and his later determination that no allowance should be given, as we understood the submission, raised an inference that the identified left sided tinnitus was not severe enough to warrant a loading.
Discussion
Chapter 9.11 of the Guides provides:
“9.11 Binaural hearing impairment and severe tinnitus: Up to 5 per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury:
•• after presbyacusis correction, if applicable
•• before determining whole person impairment (WPI).
Assessment of severe tinnitus is based on a medical specialist’s assessment.”
We decline to draw an inference that the MA intended to indicate that the tinnitus which he identified in the left ear was not of such severity to warrant consideration of an uplift pursuant to Chapter 9.11. The MA made no differentiation between the levels of tinnitus in each ear when he identified them. As will be seen in Dr Harrison’s report on re-examination, the right ear injury did cause severe tinnitus by virtue of the nature of that unrelated event, but there was some ambiguity in the description given by the MA as to the level of tinnitus in the left ear when he first identified the bilateral tinnitus. We were unable to determine on the evidence whether the left ear tinnitus enlivened the provisions of Chapter 9.11, and accordingly we acceded to Mr Ingledew’s request to be re-examined.
We were not referred to any authority for the proposition that an appellant is able to constrain the circumstances under which a re-examination was to take place. It was an integral part of a re-examination in this scientific discipline that the evaluator take such steps as would enable him/her to reach a diagnosis that clearly explained his reasoning. Where a case concerns industrial hearing loss, the taking of an audiogram is such an integral part of the process. We accordingly decline to accept Mr Ingledew’s invitation to re-examine him, but only to the extent that he thought was necessary.
Dr Harrison’s report follows:
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Additional Information
· The following information was obtained in accordance with Section 324(1) of the 1998 Act: N/A
· List any imaging studies provided by the worker which were not listed in the documentation provided: N/A
1. ADDITIONAL HISTORY SINCE THE ORIGINAL MEDICAL ASSESSMENT CERTIFICATE WAS ISSUED
I confirmed that the worker has had difficulty hearing for many years, probably 30 or more. Until he had an episode of right-sided sudden deafness of unknown origin about nine years ago, the ears were affected about equally and he has trouble hearing and understanding family, friends and other people and had to ask them to repeat themselves.
The sudden deafness was investigated and nothing found so it is an episode of idiopathic sudden sensorineural deafness which is unrelated to employment. Of course now he has much more trouble hearing with the right ear (he said he has no hearing and it) and has continuing difficulty hearing with the left ear as described above. The hearing is worse in group conversations and background noise and because of this he tends to avoid noisy places if he can. He has done no military service and has no noisy pastimes although he used to ride a motor bike to and from work years ago (compared with the long history of occupational noise exposure this would be trivial and at that time I believe that this travel to and from work would have been included in an industrial deafness claim and so I believe that it is irrelevant to the claim).
He also has noises in the ears (tinnitus) which is considerably worse on the right side where it is continuous and interferes with his understanding of speech and with his sleep. It is getting worse and started around the time that he left the respondent (about four years ago). On the left side the tinnitus started about same time and is intermittent and not a significant problem. I therefore do not consider it to be severe on the left side.
The worker has had some health problems. He suffers from raised blood pressure, coronary artery disease (for which he has had bypass surgery) and reflux. He takes treatment for these conditions but neither the conditions nor the treatment would be likely to significantly affect hearing and are thus irrelevant to the claim. A daughter suffered from childhood deafness of some significance but I believe that this is unlikely to be of relevance to the claim because the worker appears to have had normal hearing when he commenced work. There is no history of previous ear disease, none suggestive of exposure to ototoxic (hearing-damaging) medication and none of significant head injury.
I went through the statement given by the worker contained in the documentation with him and almost completely confirmed it. One point of clarification is that when he was a plasterer many years ago, what was described as workplace noise was actually construction site noise. Also his first job was not as a plasterer from 1970; he was actually a driveway attendant at a service station from 1967 until 1970.
At no point in his employment, all of which was in NSW, did he wear hearing protection.
He said that with the Respondent the noise exposure and hours of work were as described in the statement and that in the presence of the noise which was there almost all the working day, he would either have to raise his voice or shout for a person with normal hearing to understand him which is strong evidence that the noise had the potential to damage hearing.
He has not worked since leaving the Respondent.
2. FINDINGS ON PHYSICAL EXAMINATION
Due to the current pandemic the examination was restricted to the essentials, that is an examination of the ears and an assessment of the ability to understand me.
On examination the ears were normal.
I was able to converse satisfactorily with the worker at distance of about 2 m with a normal speaking voice.
3. DETAILS AND DATES OF FURTHER SPECIAL INVESTIGATIONS
Audiometry was performed on the day of assessment in a quiet environment in a suitable soundproof booth using a calibrated audiometer; the audiogram was performed by my audiologist, Ms Jane Collingwood, whose qualifications are: MA, Maud, MAudSA,(CC), clinical audiologist. The audiogram showed a bilateral sensorineural deafness, profound on the right side. The total binaural hearing impairment (BHI) is 48.3%; a copy of the audiogram accompanies this report. Not all of this deafness is occupational deafness (industrial deafness).
4. EVALUATION OF PERMANENT IMPAIRMENT – ASSESSMENT AND REASONS
a) My opinion and assessment of permanent impairment and or whole person impairment: As stated above not all of the hearing loss is due to occupational noise exposure because occupational hearing loss is usually fairly symmetrical and there is gross asymmetry of the hearing loss because of the sudden idiopathic sensorineural deafness affecting the right side. I have therefore apportioned the occupational hearing loss affecting the right side to an amount equal to the amount on the left side. However even on the left side not all of the hearing loss is consistent with being due to occupational deafness because there is excessive involvement of the lower frequencies (those below 2000 cps) and because the profile of the audiogram in those lower frequencies is inconsistent with being due to occupational noise exposure. In occupational noise exposure the hearing loss should increase progressively from lower to higher frequency until at least 3000 cps and there is more hearing loss affecting 1500 cps than 2000 cps while that at 1000 cps is the same as 2000 cps. In view of this I have apportioned the occupational hearing loss to 2000 cps and above on the left side. The rest of the hearing loss on that side is due to an unknown cause or causes, probably at least partly constitutional.
This apportionment gives 22.4% BHI of occupational hearing loss before mandatory deduction for presbycusis and 18.0% after such mandatory deduction.
The tinnitus on the left side is not severe and that on the right side is most likely related to the idiopathic sudden deafness affecting that side so there is no severe tinnitus due to employment and I have made no allowance for severe tinnitus.
The above give a resultant total BHI of 18.0% which equals 9% whole person impairment.
b) An explanation of my calculations in addition to the worksheet or actual calculations attached. N/A – I do not believe one is necessary.
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 believe that the report by Dr Howison was unclear with regard to the severity of the tinnitus on the left side. In contrast I believe that I obtained a clear picture of it and its severity. Dr accepted all of the hearing loss on the left side as being due to occupational noise exposure despite 500 cps being less affected than 1000 cps and to the same extent as 1500 cps with which I disagree; I have given my reasons for my differing apportionment.
Similarly Professor Fagan accepted all of the hearing loss on the left side as being due to occupational noise exposure despite 1500 cps being affected to the same extent as 2000 cps and there being almost no difference between 2000 cps and both 500 and 1000 cps; I have given my reasons for my differing apportionment.
Dr McArthur appears to have accepted all of the hearing loss on the left side as being due to occupational noise exposure but his audiogram shows no hearing loss in the lowest two compensable frequencies and very little at 1500 cps; so his audiogram is fairly consistent with occupational noise exposure on the left side in the lower frequencies. However I note that his audiogram was performed four years ago and I believe that the increase in hearing loss on the left side since then is probably due to the unknown cause or causes which is responsible for the non-compensable hearing loss on the left side.”
We adopt Dr Harrison’s report. It can be seen that Dr Harrison, having administered the audiogram as described, came to a different conclusion as to the frequencies that had been affected by exposure to occupational binaural hearing impairment, finding that the binaural hearing impairment found below the 1500HZ frequency had not been caused by exposure to industrial noise. In Drosd v Workers Compensation Nominal Insurer[3] Garling J held that and Appeal Panel was not relieved from its statutory obligation to conduct its assessment according to law simply because no party had challenged an error made by an MA. Although the result of the re-examination as to whether there was any severe tinnitus in Mr Ingledew’s left ear did not result in a necessity to set aside the MAC, nonetheless, in carrying out the re-examination the additional error we have found necessitates that the MAC be revoked.
[3] [2016] NSWSC 1053 at [59-61]
For these reasons, the Appeal Panel has determined that the MAC issued on 18 March 2021 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:-
| Notional date of injury | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI |
| 1 February 2017 (deemed) | 500 | 30 30 2.8 | ≥100 ≥60 20.0 | 6.1 | 0 |
| 1000 | 40 40 8.0 | ≥100 ≥70 25.0 | 10.3 | 0 | |
| 1500 | 45 45 8.1 | ≥100 ≥70 20.0 | 9.5 | 0 | |
| 2000 | 40 40 4.8 | ≥100 ≥70 15.0 | 6.2 | 6.2 | |
| 3000 | 70 70 7.7 | ≥100 ≥70 10.0 | 8.2 | 8.2 | |
| 4000 | 70 60 7.5 | ≥100 ≥ 60 10.0 | 8.0 | 8.0 | |
| TOTAL % BHI: 48.3 | |||||
| Less Pre-existing non-related loss: 25.9 | |||||
| Less Presbyacusis correction: 4.4 | |||||
| Add % of severe tinnitus: 0 | |||||
| Adjusted total % BHI: 18.0 | |||||
| Resultant total BHI of 18.0% = 9% 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.
John Wynyard
Member
Dr Robert Payten
Medical Assessor
Dr Henley Harrison
Medical Assessor
14 January 2022
0
3
0