Kulakovski v Canterbury Bankstown Council
[2024] NSWPICMP 527
•31 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kulakovski v Canterbury Bankstown Council [2024] NSWPICMP 527 |
| APPELLANT: | Blagoja Kulakovski |
| RESPONDENT: | Canterbury Bankstown Council |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Robert Payten |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 31 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against 7% whole person impairment for industrial deafness; whether Medical Assessor (MA) erred in applying section 323, whether MA failed to give adequate reasons; section 323(2) and (3) considered; Chapter 9.4 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 March 2024 the appellant, Blagoja Kulakovski, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 February 2024.
The appellant 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 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.
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, 4th ed
1 March 2021 (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 9 January 2024 this matter was referred to the Medical Assessor for assessment of WPI caused by hearing loss on a deemed date of injury of 23 September 2022.
Mr Kulakovski was born in 1953. At the time of the assessment he had been wearing hearing aids for about one month which helped his hearing significantly.
Before then Mr Kulakovski had difficulty in hearing and understanding people, including family, friends and other persons, and had to ask them to repeat themselves.
He required the television to be turned up at home which caused his wife to complain. His hearing is worse in group conversations and background noise. He also suffered from tinnitus to a degree which the Medical Assessor thought was severe.
He worked for Canterbury Bankstown Council (the respondent) from 1991 to 2022 on construction sites where he was exposed to a variety of sources of loud noise including jackhammers, kangas, concrete saws, heavy earth moving equipment and other loud machines.
He worked eight hours a day, five days a week with overtime occasionally.
He wore hearing protection.
The Medical Assessor assessed 7% 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 Procedural Direction PIC7.
Mr Kulakovski sought to be re-examined by a member of the Appeal Panel, but although a demonstrable error was conceded by the respondent, it was in the nature of a slip by the Medical Assessor which did not require a re-examination to correct.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor 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 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 MAC
The Medical Assessor stated that the audiogram performed on the day of assessment “showed a bilateral, fairly equal sensorineural deafness affecting all frequencies. The total binaural hearing impairment (BHI) derived from this audiogram is 49.4%.... However not all of this deafness is occupational deafness (‘industrial deafness’).”[1]
[1] Appeal papers page 26.
in his summary, the Medical Assessor said:[2]
“… Diagnos[is]
Bilateral sensori-neural deafness partly due to occupational deafness and partly due to another unknown cause or causes probably at least partly constitutional.
Consistency of presentation
The history and examination are consistent with a diagnosis of industrial deafness but the audiogram is not consistent with all of the deafness being industrial deafness (an accurate audiogram was easily obtained).”
[2] Appeal papers page 26.
At [9] of the MAC, the Medical Assessor said:
“The worker’s employment with the Respondent has been determined to have the tendencies, incidents and characteristics such as to pose a real risk of damaging hearing. I am in agreement with this.
The history it is of significant occupational noise exposure.”
In giving his reasons for assessment at [10a] of the MAC, the Medical Assessor said:
“As stated above the history and examination are consistent with a diagnosis of occupational noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because in noise induced occupational hearing loss the lower frequencies are usually preserved and the hearing loss in the effected frequencies increases in severity with increase in frequency until at least 3000 cps. In this case there is excessive involvement of the lothe hearing loss at 2000 cps is much the same as at 1500 cps so the profile of the audiogram below 2000 cps is not consistent with that diagnosis (5 or 10 decibels difference is insufficient). I have therefore apportioned the occupational hearing loss to the frequencies 2000 cps and above in which the profile of the audiogram is consistent with being due to occupational noise exposure.”
The Medical Assessor noted that both medico-legal experts had made different frequency apportionments to those made by him, stating “I have given my reasons for my apportionment.”[3]
[3] Appeal papers page 27.
In responding to the templated [11] of the MAC, which was titled “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the Medical Assessor made the following remarks, which for convenience we have reproduced in bold:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) (List previous injuries etc. If there are no such injuries etc put ‘Nil’)
Non-related hearing loss
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) (List each sign etc that results from the previous injury etc and explain how the previous injury etc directly contributes to each of those matters. If there are no such matters put ‘Nil’)
32.8 BHI of non-related loss
c. In my opinion the deductible proportion is for the following reasons:
(i) (List reasons which support the assessment made)
Because that is the extent of non-related loss.”
The formal Table 4 Certificate noted on its face that 32.8% BHI had been deducted for “Pre-existing non-related loss”.[4]
[4] Appeal papers page 29.
In giving the history at [4] the Medical Assessor said there were no previous or subsequent accidents, injuries or condition. He noted there was no history of previous ear disease, familial deafness or exposure to hearing damaging medication, and no significant head injury. He noted there had been no military service and no noisy pastimes. On examination the Medical Assessor found that the ears were normal apart from some irrelevant lesions which did not affect hearing.
The Table 4 Certificate was as follows:
Injurydeemed
to have happenedon:
Frequency Hz
Left
Air
dB
Bone
HL
%
Right
Air
dB
Bone
HL
%
Total% BHI
Occupational
%BHI
23September
2022
500
40
6.4
35
4.5
5.1
0
1000
45
10.2
35
5.7
6.9
0
1500
55
11.2
55
11.2
11.2
0
2000
65
10.5
60
9.4
9.6
0
3000
70
7.7
70
7.7
7.7
7.7
4000
80
8.9
80
8.9
8.9
8.9
54.9
47.4
16.6
TOTAL%BHI:49.4
Less Pre-existing non-related loss: 32.8
LessPresbyacusiscorrection:5.5
Add%ofseveretinnitus:2.0
Adjustedtotal%BHI:13.1
Resultant total BHI of 13.1 % = 7 % whole person impairment (Table 9.1)
SUBMISSIONS
Appellant
The appellant essentially made one substantive submission the result of which implicated error both as to s 327(3)(c) and (d).
We were referred to the Medical Assessor’s comment that not all the deafness he recorded was caused by occupational deafness. Mr Kulakovski referred to the finding by the Medical Assessor that the bilateral sensorineural deafness was partly caused by occupational deafness and partly due to an unknown cause or causes probably at least partly constitutional.
Mr Kulakovski noted that the Medical Assessor had found that the audiogram was not consistent with all the hearing loss being due to industrial deafness.
Mr Kulakovski referred to the explanation given by the Medical Assessor that the results of the audiogram showed an excessive involvement of the “lothe[5]” hearing loss at 2000 CPS was much the same at 1500 CPS which resulted in the profile of the audiogram being not consistent with the diagnosis of industrial deafness and therefore the Medical Assessor apportioned occupational hearing loss to the frequencies 2000 CPS and above.
[5] "lothe” would appear to be a typographical error and the phrase should read "…involvement of the hearing loss…”.
We were referred to the various statements by the Medical Assessor that there was no other obvious reason for the hearing loss.
We were referred to the provisions of s 323(2) of the 1998 and the decision of Shone v Country & Energy.[6] We were also referred to Jamieson v Demic Pty Ltd.[7]
[6] [2007] NSWWCCMA 18.
[7] No citation was given for this case but it was mentioned in Ronald Rundle v Otis Technologies Pty Ltd [2014] NSWWCCMA 14.
Mr Kulakovski said that it followed from the Medical Assessor’s exclusion of other causes that erred in deducting 32.8% binaural loss of hearing due to pre-existing nonrelated loss “without stating if possible the nature of that loss….” Mr Kulakovski noted that the Medical Assessor did not order any further investigations.
Mr Kulakovski submitted that, because the Medical Assessor had not requested any further investigations such as scans or other tests, the provisions of s 323(2) of the 1998 Act should apply, rather than the 32.8% deduction that he had made. Mr Kulakovski said that this deduction was “manifestly unjust and unfair”.
It was alleged that the deduction amounted to about 66% of Mr Kulakovski’s overall hearing loss. This result was compared to the nil deduction for s 323 made by Dr Scoppa, the appellant’s qualified specialist and the 3.5% binaural hearing loss assessed by Dr Howison, the respondent’s expert witness.
The appellant submitted that a re-examination should be concluded by a Member of the Appeal Panel. In the alternative Mr Kulakovski suggested that we amend the deduction to a 1/10th deduction of 4.94% binaural hearing loss resulting in 40.96% binaural hearing loss of hearing. A further alternative was to adopt the same deduction made by Dr Howison.
It was submitted that the alleged errors described by Mr Kulakovski also amounted to a demonstrable error.
The respondent
The respondent submitted that the calculation of hearing did not involve the application of a deduction under s 323 of the 1998 Act.
The reduction in entitlement found by the Medical Assessor came about because the audiogram demonstrated that only the frequencies between 3000 and 4000 Hz (subject to the respondent’s later concession) had been affected by occupational noise exposure.
The respondent submitted that the audiogram showed that the total binaural hearing loss was not only due to exposure to noisy employment but that there were other non-occupational factors involved. Section 323 was not involved and therefore there was no error in the assessment.
The respondent agreed that the Medical Assessor found no previous history that would explain the presence of non-related hearing loss, but submitted that it was the interpretation of the audiogram that led him to that conclusion, and that the Medical Assessor’s explanation was sufficient and reasonable.
The respondent then referred to the actual calculations, noting that while the Medical Assessor apportioned the occupational hearing loss to the frequencies 2000 CPS and above, in his Table 4 certificate he only accounted for the frequencies 3000 CPS and above.
This error was conceded by the respondent and it submitted that the error should be corrected.
The respondent suggested that the matter should be referred back to the Medical Assessor, but now the matter has been referred to us we have no power to do so.
CONSIDERATION
The appellant has erroneously assumed that the provisions of s 323 of the 1998 Act are applicable in the circumstances of this case. It is correct that provision has been made for the application of s 323 to hearing loss cases, where appropriate. Section 68B(4) of the Workers Compensation Act 1987 (1987 Act) provides for the operation of s 323 in disease cases and in relation to apportionment pursuant to s 22 of the Act for the disease cases being ss 15, 16 and 17. These provisions however do not affect the present case.
The appellant relies on the provisions of s 323(2) of the 1998 Act.
Section 323 provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note: So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
Note : Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
Guidelines were promulgated pursuant to s 323(4). Relevantly, Chapter 9.4 of the Guides provides:
“The level of hearing impairment caused by non-work-related conditions is assessed by the medical specialist and considered when determining the level of work-related hearing impairment. While this requires medical judgement on the part of the examining medical specialist, any non-work-related deductions should be recorded in the report.”
It can be seen that Chapter 9.4 of the Guides does not speak in terms of previous injury, pre-existing condition or abnormity. The deduction in hearing loss cases is accordingly to be assessed using medical judgment on behalf of the examining Medical Assessor, who considers the level of non-work-related conditions in determining the work related hearing loss. The Medical Assessor is required to record in his report the deductions he made for the non-work-related conditions.
Section 323(2) applies if the extent of the deduction is difficult or costly to determine “(because, for example, of the absence of medical evidence).” Section 323(3) provides that the reference to “medical evidence” in subsection (2) is a reference to medical evidence that is accepted or preferred by the Medical Assessor.
In matters of occupational noise induced hearing loss of gradual process, the Medical Assessor considers the medical history, including the nature and duration of occupational noise exposure and the physical examination, and including the nature and extent of all the hearing losses on audiogram.
The Appeal Panel notes that in this case the Medical Assessor found the hearing loss at 2000 CPS to be similar to that at 1500 CPS, which the Medical Assessor stated was not consistent with the diagnosis of occupational noise exposure.
This is the medical evidence preferred by the Medical Assessor as set in s 323(3).
The Appeal Panel notes the profile of the audiogram as set out in the Table 4 Certificate is not contested. Where the profile of the audiogram deviates from that of industrial deafness, the cause of that deviation is not always apparent, but the profile of the audiogram demonstrated that not all the hearing loss was caused by exposure to industrial noise.
Further, audiograms themselves give a reliable indication of the extent of the contribution of the non-work-related condition to the overall binaural hearing impairment. It is not correct, with respect, to simply rely on the provisions of s 323(2) as, firstly, it may be difficult to determine whether the non-work-related condition pre-existed the onset of hearing loss. Secondly, the extent of the deduction is neither difficult nor costly to determine, as the audiogram defines the extent of the non-work-related condition precisely. Thirdly, a 1/10th deduction is in any event at odds with the medical evidence accepted and preferred by the Medical Assessor pursuant to sub-s (3).
We note Mr Kulakovski’s submissions are based on assumption that the Medical Assessor has indeed applied the terms of s 323 in making his deduction for the non-work-related binaural hearing impairment. Such an assumption is quite understandable in view of the fact that the Medical Assessor, as we have indicated, completed in truncated form, the templated contents of [11] in his MAC. At face value the Medical Assessor indicated that 32.8 BHI of non-related loss resulted from “the previous injury, pre-existing condition or abnormality.” He also indicated that the reason for his deduction was “because that is the extent of non-related loss.”
As we have indicated, s 323 does not apply in the circumstances of this case. The Medical Assessor has relied on the audiogram to exclude from the total BHI, the BHI indicated for the frequencies below 3000 Hz. This is what is stated on the Table 4 Certificate, except that again the non-related loss is described as “Pre-existing non-related loss.”
The Appeal Panel accordingly has some sympathy with Mr Kulakovski in his trying to navigate his submissions around these templates. It is to be hoped that in this field of medical science, Medical Assessors will be astute to ensure that where the non-related BHI has not been caused by a pre-existing condition, they will strike out the word “pre-existing” from the Table 4 Certificate, and indicate in their MAC that the templated [11] is not applicable.
For these reasons the submissions by Mr Kulakovski are rejected. The explanation given at [10a] of the MAC by the Medical Assessor in making his deduction is sufficient compliance with his obligation to give reasons generally, in accordance with Vegan, and specifically with Chapter 9.4 of the Guides.
However, we note the properly made concession by the respondent that there has been an inconsistency between the Medical Assessor’s findings at [10a] that the profile of the audiogram below 2000 cps[8] was not consistent with noise induced BHI, and his Table 4 Certificate, which stated that the BHI below 3000 Hz was not consistent with noise induced BHI.
[8] “cps” (cycles per second) is an alternate way of referring to the hertz (Hz).
The Table 4 Certificate should accordingly be adjusted by adding a further 9.6% to the occupational binaural hearing impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W9358/23 |
Applicant: | Blagoja Kulakovski |
Respondent: | Canterbury Bankstown Council |
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:
Injurydeemed to have happenedon: | Frequency Hz | Left Air | dB Bone | HL % | Right Air | dB Bone | HL % | Total% BHI | Occupational %BHI |
23September 2022 | 500 | 40 | 6.4 | 35 | 4.5 | 5.1 | 0 | ||
| 1000 | 45 | 10.2 | 35 | 5.7 | 6.9 | 0 | |||
| 1500 | 55 | 11.2 | 55 | 11.2 | 11.2 | 0 | |||
| 2000 | 65 | 10.5 | 60 | 9.4 | 9.6 | 9.6 | |||
| 3000 | 70 | 7.7 | 70 | 7.7 | 7.7 | 7.7 | |||
| 4000 | 80 | 8.9 | 80 | 8.9 | 8.9 | 8.9 | |||
| 54.9 | 47.4 | 49.4 | 26.2 | ||||||
TOTAL%BHI:49.4 | |||||||||
| Less Pre-existing non-related loss: 23.2 | |||||||||
LessPresbyacusiscorrection:5.5 | |||||||||
Add%ofseveretinnitus:2.0 | |||||||||
Adjustedtotal%BHI:22.7 | |||||||||
| Resultant total BHI of 22.7% = 11% whole person impairment (Table 9.1) | |||||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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