Lawrence- Plant v J&S Plant Pty Ltd (deregistered)
[2021] NSWPICMP 87
•8 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lawrence- Plant v J&S Plant Pty Ltd (deregistered) [2021] NSWPICMP 87 |
| APPELLANT: | James Lawrence- Plant |
| RESPONDENT: | J&S Plant Pty Ltd (deregistered) |
| APPEAL PANEL: | Member Marshal Douglas Dr Brian Williams Dr Paul Niall |
| DATE OF DECISION: | 8 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker suffered injury of further hearing loss; contended MAC contained a demonstrable error because firstly, Medical Assessor (MA) did not attribute his hearing loss in right ear, to the extent it exceeded loss in left ear, as being due to occupational noise and, secondly, MA did not attribute hearing loss at 500 and 1000 Hz as being due to occupational noise; Held- Appeal Panel found MA was correct to come to the conclusions he did; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 December 2020 James Lawrence-Plant (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Henley Harrison, an Approved Medical Specialist (since 1 March 2021 with the commencement of the Personal Injury Commission Act 2020, known as a Medical Assessor (MA)), who issued a Medical Assessment Certificate (MAC) on 20 November 2020.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· 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 section 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was born in 1947. He migrated to Australia from the United Kingdom in 1990. In the United Kingdom he worked in vehicle manufacturing from 1979 to 1990. In a statement he signed on 22 April 2020 he said that he was exposed to noise in that employment but rarely to the point that he had to raise his voice to have a conversation.
Upon arriving in Australia he worked as a technician between 1990 and 1991 servicing spray guns. He provided a history to ear nose and throat physician Dr Joseph Scoppa that he was not exposed to significant loud noise in that employment as he was able to have a conversation with a person standing about a metre away. The Appeal Panel observes that Dr Scoppa was qualified by the insurer of J & S Plant Pty Limited (the respondent) to provide a report on the appellant’s hearing loss.
The appellant worked for the respondent from 8 April 1993 to 27 August 2006, at which time the respondent was deregistered, but in a statement the appellant signed on 22 April 2020 he said that between 2004 and the date upon which the respondent was deregistered his duties for the respondent were not substantial. He also revealed in his statement that the substantive duties he did perform for the respondent involved him selling, repairing and maintaining hire machinery including building tools, small plants and jack hammers. He revealed in his statement that as a consequence of performing those duties he was exposed to noise. He said that he generally worked eight to nine hour shifts for the respondent for five and a half days a week and that he was exposed to noise whilst performing his duties for between one and three hours a shift. He described the noise to which he was exposed as being very loud. He said that when testing and demonstrating equipment his right ear was exposed to noise more than his left ear because he is right handed and generally held equipment with his right hand which he held more to his right side. He said that if he was wearing hearing protection he would take the right ear muff off so as to communicate with customers. The appellant also said that when performing repairs he would listen closely to the engines with his right ear.
The appellant said in his statement that he had previously made a claim against the respondent for hearing loss. In the material before the Commission is a letter from WorkCover NSW to the appellant’s solicitors dated 18 September 1998 advising the appellant’s solicitors that an agreement between the appellant and the respondent under section 66 of the Workers Compensation Act1987 (the 1987 Act) had been registered that provided for payment of compensation to the appellant under section 66 of the 1987 Act for a binaural hearing loss of 20.32%.
On 22 November 2018 the appellant’s then solicitors wrote to the respondent’s then insurer advising it that the appellant claimed compensation under section 66 of the 1987 Act for permanent impairment he had from a further loss of hearing. The appellant relied upon a report of ENT Surgeon Dr Kenneth Howison dated 14 November 2018.
In a letter dated 25 September 2019 the respondent’s insurer notified the appellant under section 78 of the 1998 Act that it denied liability for his claim because, according to the insurer, the appellant had not made his claim within the time required under section 261 of the 1998 Act. The respondent further notified the appellant that, in the alternative, it disputed liability for his claim because the degree of his permanent impairment from his injury of hearing loss did not exceed the relevant threshold required under section 66 to be entitled to compensation. The insurer informed the appellant that it relied upon the report of Dr Scoppa who had assessed him to have a whole person impairment (WPI) of 12% due to his exposure to occupational noise which, after a deduction was made for the compensation he had previously received for the injury of hearing loss for which he made a claim in 1998, reduced to 1% whole person impairment for his further hearing loss.
On 16 June 2020 the appellant’s solicitors lodged with the Commission an Application to Resolve a Dispute. It would seem by that time the respondent took no issue with the appellant not having made a claim for compensation within the time stipulated by section 261.
On 23 September 2020 a delegate of the Registrar referred the matter to the MA to assess the degree of permanent impairment of the appellant from his injury of further hearing loss. In the referral it was noted that the appellant had received compensation previously for 20.32% of binaural loss.
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.
Based on its preliminary review, the Appeal Panel determined that it would not require the appellant to undergo a further medical examination. This is because for reasons explained below, the Appeal Panel came to the view that the MAC did not contain a demonstrable error. The Appeal Panel cannot therefore revoke the MAC, and its power to require the appellant to be re-examined is not enlivened.[1]
[1] See NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The MA set out within Part 4 of the MAC the following history that he obtained relating to the respondent’s exposure to occupational noise:
“Before he came to Australia from his native England, the worker worked in a car factory, half in the workshop close to the assembly line and half outside. He said however that there was not much noise even on the assembly line and that he would not have to raise his voice for someone with normal hearing to understand him at a distance of about one metre which suggests that the noise did not have the potential to damage hearing over an eight hour working day. Whether it did or not is essentially irrelevant to the claim I believe because I should think that this would have been taken into account in the 1998 settlement.
When he came to Australia, he worked for about 15 months as a technician for a company called Biggs Bulles & Salmon servicing spray guns. He said that this was not noisy and that, as above, a person with normal hearing could understand him at a distance of about 1 m in the presence of any noise.
He said that after that, from 1991 he was employed by Links Mountain Hire which then
became his own company, the respondent which was usually known as Bluey’s. I note that this is slightly different to what is in his statement which I went over carefully with him and essentially confirmed. With the respondent he was exposed to noise from the workshop where his technician worked repairing power tools et cetera as described in the statement and also from him (the worker) demonstrating the large number of powered tools described in the statement as well as noise from him repairing them himself. His office was right next to the workshop and so even when he was not working on or demonstrating these tools, he often had noise exposure from the workshop. The statement said that he worked 8-9 hours a day, 5 ½ days a week but he pointed out that he could not afford to have the technician there all the time and that very often he worked seven days a week. In the presence of the noise a person with normal hearing could not understand him at a distance of one metre and it is obvious that much of the time he was exposed to noise with the potential to damage hearing. He said that he would be exposed to such noise a very variable amount of time per day but usually one or two hours or even up to three hours occasionally. He could wear hearing protection only occasionally. He also pointed out that he thought that he had more noise exposure to the right ear as explained in his statement. He was exposed to the same type of noise before he took over the company and as his statement indicates, he has not been exposed to occupational noise since 2004 because he has not worked since. So he was exposed to occupational noise overall from 1991 to 2004 that is for 13 years.”The MA obtained audiometric measurements of the appellant’s hearing at frequencies between and including 250 and 8000Hz. The MA plotted those measurements in an audiogram that he attached to the MAC and also tabulated his measurements he obtained at 500 to 4000 Hz inclusive within Table 4 of the MAC. The MA noted within Part 6 of the MAC that the audiometric measurements revealed the appellant had bilateral sensorineural deafness affecting all frequencies but the MA also indicated his view in both Part 6 and Part 7 of the MAC that not all of the appellant’s hearing loss was due to occupational noise and that part of the appellant’s hearing loss was due to other causes, possibly a constitutional cause.
The MA assessed the appellant’s degree of permanent impairment due to hearing loss from occupational noise to be 15% WPI. The MA noted the settlement the appellant reached for his prior injury of hearing loss, and after making a deduction for that, the MA assessed the appellant’s degree of permanent impairment for the appellant’s injury of further hearing loss to be 5% WPI. The MA provided the following explanation within Part 10 of the MAC for his assessment:
“There is 15% whole person impairment but taking into account the previous settlement there is 5% whole person impairment requiring compensation.
In making that assessment I have taken account of the following matters:-
As stated above the history and examination are consistent with a diagnosis of occupational hearing loss but the audiogram is not consistent with solely occupational hearing loss. This is because occupational hearing loss is usually fairly symmetrical and in the frequencies affected by occupational noise exposure there is considerably worse hearing on the right side. I note that the worker said that he had more noise exposure to the right ear than the left but I believe that this does not account for the significant difference between the two sides. I have therefore apportioned the occupational hearing loss to be amount of hearing loss affecting the left side. Even on the left side, the profile of the audiogram is not consistent with solely occupational hearing loss because there is excessive involvement of the lower frequencies. Taking into account the duration and intensity of the occupational noise exposure, I have apportioned the occupational hearing loss to the frequencies 1500 cps and above on the right side. This apportionment gives 36.1% BHI before correction for presbycusis.
At the age of 72 years a mandatory deduction of 6.2% is required for presbycusis so I have made it.
The worker does not suffer from severe tinnitus so I have made no allowance for this.
The above give a resultant total BHI of 29.9% which equals 15% whole person impairment.However, there was a previous settlement with compensation for 20.32% BHI in 1988.This was not assessed in accordance with the WorkCover Guides. Under these circumstances the WorkCover guides prescribe a method of dealing with this situation in Section 9.15.
The following calculations have been made in this way:
• The current binaural hearing loss is 29.9%.
• Percentage WPI is 15%.
• The binaural hearing impairment for which compensation was paid previously is 20.32% which is 687.95% (sic: 67.95%) of the current hearing impairment of 29.9%.
• The remaining percentage, 32.05% is the percentage of WPI to be compensated.
• 30.05% of the WPI of 15% is 4.81%.
The worker is compensated an additional 5% WPI.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred by finding his loss of hearing on the right side in the frequencies between and including 1500Hz and 4000Hz was not due to occupational noise to the extent that it exceeded his loss of hearing on the left side. The appellant submits that his additional loss of hearing on the right side was only 7.9% greater overall than the loss on the left side in these frequencies and the MA’s conclusion that his hearing on the right side was “considerably worse” than his hearing on the left side was inconsistent with the difference being only 7.9%.
The appellant notes that the MA’s audiometric measurements did not reveal a difference in the hearing on his right side from what it was on his left side at 1000Hz and the appellant submits that that is also inconsistent with the MA’s finding that his hearing on his right side was considerably worse than his hearing on his left side.
The appellant notes that he provided a history to the MA that he had been exposed to more noise on his right side. The appellant submits that “applying a common sense test of causation, in the absence of any competing cause for the asymmetry, additional exposure on the right side must likely be a, or the, significant contributing factor to, or a cause of, the additional loss on the right side in the 1500Hz to 4000Hz ranges”.
The appellant further submits that the MA, when finding that his hearing loss at the frequencies 500Hz and 1000Hz was not related to occupational noise, did not have proper regard to the evidence regarding the intensity and duration of the occupational noise to which he was exposed. The appellant also submits that finding was inconsistent with there being no discernible asymmetry in his hearing loss at 1000Hz.
In reply, the respondent submits that the MA obtained an accurate and detailed history from the appellant and performed a thorough examination and considered the audiogram before determining the appellant’s hearing loss, and gave a full explanation for his assessment. The respondent submits that the MA took into account the appellant’s asymmetry of hearing loss when assessing the appellant’s hearing loss. The respondent submits the MA considered the intensity of the occupational noise to which the appellant had been exposed. The respondent submits that the MA carefully considered the material before him before reaching his conclusion. The respondent submits that the MAC does not contain a demonstrable error.
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.
Determining the cause of a worker’s hearing loss requires consideration of the entire profile of an audiogram. In other words, the audiometric measurements across all frequency ranges need to be taken into account in order to establish what factors have contributed to a worker’s hearing loss.
In this case the audiogram revealed flatness in the frequencies of 2000-3000Hz, with a 10 decibel loss difference the right and left side, with the greater loss being on the right side. If, as the appellant contends, he suffered a greater hearing loss on his right side than his left side as a consequence of greater exposure to occupational noise on his right side than his left side, then there would not have been the flatness that appears in the audiogram at the range of 2000-3000Hz frequencies. The fact that there is flatness in the audiogram at the 2000-3000Hz frequencies, coupled with the fact that there was an asymmetry of the hearing loss between the right side and left side, reveal that there were causes other than occupational noise that contributed to the appellant’s hearing loss.
The Appeal Panel does not accept the appellant’s submission that the difference in his hearing between the right and left side was not considerable. The Appeal Panel notes that between the frequencies of 2000-4000Hz it was 10 decibels or greater. That is significant. The MA was not wrong, in the Appeal Panel’s view, to conclude that in the frequencies that are typically affected by occupational noise, the appellant’s hearing on the right side was considerably worse than the left side.
The MA took into account that the appellant’s exposure to occupational noise on his right side was greater than his left side, but the MA explained in the MAC that this circumstance did not account for the significant difference in the hearing loss between the right side and the left side. The Appeal Panel considers that conclusion of the MA is correct.
Simply put, the audiogram, in which the MA plotted the audiometric measurements he obtained of the appellant’s hearing, was not typical of noise induced hearing loss and revealed that there were causes other than noise that contributed to the appellant’s hearing loss. The Appeal Panel considers that the MA was right to ignore the appellant’s hearing loss on the right side to the extent that it exceeded his hearing loss on the left side in the frequencies 1500-4000Hz when assessing the appellant’s hearing loss due to occupational noise.
In terms of the appellant’s complaint relating to the MA not including his hearing loss at the frequencies of 500-1000Hz when assessing his loss due to occupational noise, the Appeal Panel notes that the MA had regard to the appellant’s history of exposure to occupational noise, which was from 1979 to 2004, being a total of 25 years. The MA explained in the MAC that he had taken into account the duration and intensity of the occupational noise to which the appellant had been exposed, and having done so, the MA apportioned the appellant’s losses of hearing at 1500-4000Hz to occupational noise, with the exception of the loss of the right side that exceeded the left side. In other words the MA did not consider the appellant’s losses in the 500-1000Hz range to be due to occupational noise. The MA noted that Dr Kenneth Howison, an IME whom the appellant qualified to provide a report on his hearing loss, did not attribute the appellant’s losses at 500Hz as being due to occupational noise, and that Dr Joseph Scoppa, an IME whom the respondent qualified to provide a report, did not attribute the appellant’s losses at 500 and 1000Hz as being due to occupational noise.
In the Appeal Panel’s view it was open to the MA to form the opinion that the appellant’s hearing loss at 500 and 1000Hz was not due to occupational noise, bearing in mind that:
(a) the audiogram revealed that the appellant’s hearing loss was caused by more factors than just occupational noise, and
(b) hearing loss starts at the higher frequencies and progresses to the lower frequencies, but the lower frequencies are generally spared unless there has been intense noise over a very lengthy duration.
In the Appeal Panel’s view, the intensity and the duration of the noise to which the appellant was exposed, coupled with the fact that there were other causes of his hearing loss, does not indicate that the MA was wrong to conclude that the appellant’s hearing losses at the frequencies at 500-1000Hz were unrelated to occupational noise.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 November 2020 should be confirmed.
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