Ingledew v Cromack Transport Pty Ltd - [2022] NSWPICMP 7

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, 4^th ed 1 April 2016 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMP 7
Decision Date: 14 January 2022

CaseChat Overview and Summary

In the case of Ingledew v Cromack Transport Pty Ltd, the applicant sought compensation for a binaural hearing loss equivalent to 10% Whole Person Impairment (WPI). The dispute arose from the applicant's claim that the hearing loss was a result of his employment with Cromack Transport Pty Ltd. The matter was heard by the appeals tribunal, which had to determine whether the applicant's hearing loss was work-related and if the correct percentage of impairment was awarded. The applicant's right ear hearing was affected by an unrelated vascular incident, and the tribunal had to consider this alongside the left ear tinnitus and hearing loss.

The legal issues at the heart of this case revolved around the determination of the severity of the applicant's tinnitus in both ears and whether it was related to his employment. The tribunal had to consider the Medical Assessor's (MA) findings and the applicant's re-examination results. Specifically, the tribunal had to decide whether the left ear tinnitus was severe and if there was a loading applicable to the impairment percentage. The tribunal also needed to consider whether the low tone frequencies in the audiogram were work-related.

The tribunal found that the MA had noted the presence of tinnitus in both ears but had only commented on the right ear tinnitus being unrelated to the applicant's employment. The tribunal concluded that it could not infer the MA's intention regarding the left ear tinnitus. Upon re-examining the applicant, the tribunal found that the left ear tinnitus was not severe and that there was no loading applicable. Additionally, the tribunal determined that the low tone frequencies were not work-related, applying Drosd v Workers Compensation Nominal Insurer. Consequently, the tribunal revoked the Medical Assessor's Certificate (MAC) and substituted a 9% WPI.

The tribunal's final order was to substitute the 10% WPI with a 9% WPI, reflecting the tribunal's findings on the severity of the left ear tinnitus and the work-relatedness of the low tone frequencies in the audiogram. The tribunal's decision was based on the evidence presented and the application of relevant legal principles.

Orders