Laxamana v Graphic Packaging International Australia Converting Ltd
[2024] NSWPICMP 291
•15 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Laxamana v Graphic Packaging International Australia Converting Ltd [2024] NSWPICMP 291 |
| APPELLANT: | Randie Laxamana |
| RESPONDENT: | Graphic Packaging International Australia Converting Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Robert Payten |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 15 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from finding that the appellant had not suffered industrial deafness; whether MA had given adequate reasons; whether he had failed to address reasoning of the medicolegal experts; whether he had reconciled his finding that the appellant's employment sufficient to cause industrial deafness with finding that there was no industrial deafness; Held – Medical Assessment Certificate revoked; referral in terms of medical dispute; MA finding made without jurisdiction; Skates v Hills Industries Ltd, Scone Race Club Ltd v Cottom, Jaffarie v Quality Castings Pty Ltd, and Haroun v Rail Corporation considered and applied; chapter 1.23 of the Guides relevant in reassessing entitlement. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 November 2023 Randie Laxamana, 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, who issued a Medical Assessment Certificate (MAC) on 31 October 2023.
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 8 September 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by hearing loss on a deemed date of 12 July 2022, and to advise whether a hearing aid for the left ear and a CROS device for the right ear was reasonably necessary.
Graphic Packaging International Australia Converting Ltd (the respondent) had denied liability on the basis that the appellant had not suffered industrial deafness, but at teleconference on 5 September 2023 withdrew the issue and consented to the matter being referred to the Medical Assessor.[1] The Medical Assessor has found that the appellant did not suffer industrial deafness.
[1] Consent Orders at appeal papers page 40.
The history relied on by the Medical Assessor was that Mr Laxamana had been employed as a machine operator and first became aware of hearing loss in the right ear in about 2015 and in the left ear in about 2017. He developed tinnitus in both ears in about 2017 which was more marked in the right ear.
Mr Laxamana had mastoid surgery to remove a cholesteatoma in the right ear and “suffered loss of hearing in the left ear suddenly after this surgery.” It would appear that in fact Mr Laxamana lost the hearing in his right ear, and the reference to the left ear is an error.
Mr Laxamana however had a “now progressive hearing loss on the left” that occurred near 5 November 2021 and documented in the CT Temporal Bones scan report on that date.[2] And “Sudden onset of sensorineural hearing loss on the left” documented in the MRI report of 25/3/2022.[3] He has been wearing a hearing aid in the left ear for the 15 months prior to the assessment by the Medical Assessor.
[2] Appeal papers page 118.
[3] Appeal papers page 119.
The Medical Assessor found that Mr Laxamana did not have industrial deafness, and did not certify any 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Both parties sought such a re-examination, but the issue pertained to the different interpretations of audiogram results taken in 2017, and no purpose would have been served in conducting such a re-examination, or indeed taking a further audiogram, as explained in our discussion, below.
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 issues raised in the appeal concerned the reasons given by the Medical Assessor.
The MAC
The Medical Assessor took a consistent history of Mr Laxamana’s employment with the respondent from 2002 to December 2022. The Medical Assessor accepted that Mr Laxamana’s exposure to noise during the time was “sufficient to be the causation of industrial deafness.”[4] The Medical Assessor noted that Mr Laxamana had arrived from the Philippines in 2001 and was not exposed to noisy employment prior to his time with the respondent.
[4] Appeal papers page 32.
The Medical Assessor described Mr Laxamana’s difficulties with his loss of hearing and noted that Mr Laxamana’s tinnitus also interfered with his sleep and his concentration.
The Medical Assessor’s physical examination revealed the right sided mastoidectomy and that the right tympanic membrane was scarred and retracted. The Medical Assessor also noted that the left tympanic membrane was scarred with a retraction pocket in the attic region. The pure tone audiogram showed that Mr Laxamana had no hearing in his right ear and a severe mixed loss of hearing in the left ear. The Medical Assessor enclosed a copy of his audiogram.[5]
[5] Appeal papers page 22.
In his summary at [7], the Medical Assessor diagnosed “total deafness in the right ear and a severe mixed deafness in the left ear.” In answer to a templated question at [8e], the Medical Assessor said “[Mr] Laxamana has no hearing loss as a result of industrial deafness.”
The Medical Assessor repeated that opinion in giving his reasons at [10] of the MAC. He said:
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies. The total loss of hearing in the right ear is as a result of infection, cholesteatoma and surgery. The loss in the right ear is not noise induced.”
With regard to the left ear deafness, the Medical Assessor stated that it was “not noise induced.” He said that there was a “mixed loss of hearing” but that the conduction component “cannot be” as a result of exposure to noise. This was, he explained, because such a severe loss of hearing in the left ear, which was based on the bone conduction studies, “cannot be” as a result of exposure to noisy employment. He said:[6]
“The sudden loss of hearing in the left ear that occurred at the time of surgery on the right ear cannot be as a result of noise induced hearing loss.”
[6] Appeal papers page 34
(As indicated, the Appeal Panel notes that the sudden loss of hearing in the left ear occurred about November 2021, as documented in the CT scan report, and the MR report on March 2022.)
At [10 c] the Medical Assessor noted that his audiogram was similar to that carried out by Dr Scoppa, but he disagreed that the frequencies 2000, 3000 and 4000 Hz had been damaged as a result of exposure to noise. The Medical Assessor agreed with the findings of Dr Raj, on an audiogram that was also similar to his, that Mr Laxamana’s hearing loss was not noise induced.
The Medical Assessor agreed that Mr Laxamana would benefit from a hearing aid in the left ear and a CROS device for the right ear, but as Mr Laxamana’s hearing had not been caused by exposure to industrial noise he did not recommend their supply.
SUBMISSIONS
The appellant employer
The submissions from the appellant were drafted by Mr Gregory Horan of counsel. The first issue raised was that the Medical Assessor had not exposed “a proper pathway of reasons” for his finding that there was no industrial deafness. It was alleged that the Medical Assessor had failed in a number of respects. There had been:
(a) a failure by the Medical Assessor to record the results of the audiogram in Table 4 at page 7 of the MAC;
(b) a failure to address the reasoning provided by Dr Scoppa, and
(c) a failure to reconcile the finding by the Medical Assessor that the exposure to noise by Mr Laxamana had been sufficient to cause industrial deafness with his ultimate ruling that there was no industrial deafness.
Mr Laxamana also referred again to Dr Scoppa’s opinion that not all the hearing loss was due to industrial deafness in view of the right ear surgery. He submitted that industrial deafness was typically a sensorineural hearing loss and the audiogram showed mixed hearing loss.
Mr Laxamana also submitted that it was relevant that Dr Scoppa’s audiogram of 4 July 2022 was consistent with an earlier audiogram taken by the Australian Hearing and Balance Centre on 16 November 2021. He also referred to Dr Scoppa’s response to the report of Dr Raj and the treating reports of Dr North regarding the right ear cholesteatoma operation in 2017.
Mr Laxamana also noted that the question of injury was withdrawn at teleconference on 5 September 2023. Mr Laxamana submitted that the effect of that withdrawal was a concession that Mr Laxamana’s employment was of a nature to which industrial deafness was due.
Mr Laxamana referred to the conclusion by the Medical Assessor that the exposure level of the noise Mr Laxamana was subjected to was sufficient to cause industrial deafness. Mr Laxamana contrasted that finding with the findings at [10b] of the MAC explaining why there was no noise induced loss of hearing.
Mr Laxamana then engaged with the reasoning given by the Medical Assessor for finding that there was no industrial deafness. In the light of this background, Mr Laxamana submitted that the reasons given by the Medical Assessor were not adequate for a party to properly understand, and that therefore a demonstrable error had occurred.
Further, Mr Laxamana submitted that the Medical Assessor did not record the results of his audiogram, supplying a blank table at page 7 of the MAC, and that therefore the MAC was incomplete and not able to be understood adequately.
Whilst the Medical Assessor had found him to be suffering from severe deafness in the left ear, Mr Laxamana submitted that the Medical Assessor had not engaged with the opinion of Dr Scoppa who found 13% WPI after deducting a proportion that was not due to industrial deafness. The Medical Assessor had failed to address the “stark differences” between his approach and that of Dr Scoppa.
Mr Laxamana referred to Dr Scoppa’s reasoning and submitted that the Medical Assessor failed to address the issues which Mr Laxamana submitted were the basis of Dr Scoppa’s opinion. Consequently, Mr Laxamana submitted that it was “entirely unclear” how the Medical Assessor reach the conclusion that there was no industrial deafness.
In the unusual circumstances of Mr Laxamana’s case, he submitted that Dr Scoppa’s opinion was the more comprehensive and consistent approach.
Mr Laxamana submitted that the fact that he had total hearing loss in his right ear did not negate the fact that, on the balance of probabilities, he was suffering a degree of industrial deafness in that ear, which was more or less the same degree as in the left ear, in accordance with the evidence of Dr Scoppa and the Medical Assessor.
Mr Laxamana submitted finally that the finding that there was no industrial deafness was at odds with the history taken by the Medical Assessor and consistent with the other histories in the matter.
The respondent
The respondent submitted that the matter should be referred back to the Medical Assessor to record his findings in Table 4 of the MAC pursuant to s 329 of the 1998 Act. The respondent conceded that the Medical Assessor fell into error by failing to do so in accordance with Chapter 9 of the Guides and the 1998 NAL tables. This, the respondent conceded, was a demonstrable error.
We interpose to observe that s 329 is drafted so that the President’s Delegate has the power to either refer the matter back to the Medical Assessor or to refer the matter to an Appeal Panel. A court or the Commission may also refer an assessment back to the Medical Assessor, but a Medical Appeal Panel no longer has that power. The power for an Appeal Panel to order a reconsideration pursuant to s 378 of the 1998 Act was repealed on the commencement of the Personal Injury Commission Act 2020. We accordingly put this application to one side.
The respondent submitted that the Medical Assessor had indeed given proper reasons. He had concluded that there was an exposure to sufficient noise to cause industrial deafness, but gave detailed reasons as to why that was not the case in Mr Laxamana’s situation.
The respondent referred to [10b] of the MAC and the reasons therein given for this conclusion. These reasons it was submitted were adequate, and we were referred to Soulmezis v Dudley (Holdings) Pty Ltd[7] in that regard. It was also submitted that there was a presumption in favour of the clinical judgement of a Medical Assessor and reference was made to Marina Pitsonis v Registrar of the Workers Compensation Commission.[8]
[7] (1987) 10 NSWLR 247.
[8] [2008] NSW CA 88.
The respondent submitted that if the matter could not be reconsidered, then Mr Laxamana should be re-examined by a member of the Appeal Panel.
DISCUSSION
The MAC must be revoked. The appellant is quite correct to submit that with the withdrawal of the dispute at teleconference on 5 September 2023, the insurer accepted that Mr Laxamana’s injury had been caused by the industrial hearing loss that was pleaded in the A reflected the medical dispute RD. The injury was described as follows:[9]
“As a result of the loud noise that the Applicant was exposed to during his employment with the Respondent, the Applicant sustained binaural hearing loss. The Applicant also suffers from severe tinnitus.”
[9] Appeal papers page 47.
It is well-settled that a Medical Assessor is bound by the terms of the referral, provided that the referral reflected the medical dispute.[10] The referral required the Medical Assessor to assess WPI caused by hearing loss, which, whilst perhaps lacking the precision that might have preferable, was in context nonetheless a remit for the Medical Assessor to assess WPI caused by Mr Laxamana’s exposure to occupational loud noise. Accordingly, the Medical Assessor had no jurisdiction to state that “Mr Laxamana does not have industrial deafness.” The nature of the injury had been agreed before the Commission, and orders had followed which resulted in the referral being made. The nature of the injury is exclusively a matter for the Commission.[11] Although submissions were made on both sides seeking to argue as to the Medical Assessor’s reasons, a finding of a person without jurisdiction cannot bind others.[12]
[10] Skates v Hills Industries Ltd [2021] NSWCA 142: Scone Race Club Ltd v Cottom [2024] NSWCA 34.
[11] Jaffarie v Quality Castings Pty Ltd [2018] 88 at [80].
[12] Haroun v Rail Corporation [2008] NSWCA 192 at [21].
The question now arises as to the most appropriate method of reassessing Mr Laxamana’s entitlements. We indicated above that a re-examination would not assist in this regard. Mr Laxamana is now totally deaf in the right ear as a result of the surgery in December 2017 and the audiometry taken since would not assist such a reassessment. A fresh audiogram on re-examination would suffer the same difficulty.
This is an unusual case, and it is convenient to set out the background in a little more detail.
The earliest audiometry carried out was when the ENT Registrar at Westmead Hospital referred Mr Laxamana for an audiological assessment on 6 September 2017.[13] Mr Laxamana reported “poor hearing in both ears; worse in the right ear. [Mr Laxamana] further reported increased tinnitus and otalgia, which moves from the mastoid area to the back of his neck on both sides but is worse on the right.” The audiology was said to have shown a “moderately severe low frequency upward sloping to mild high frequency hearing loss in the left ear,” which appeared to be sensorineural in nature.
[13] Appeal papers page 94.
For the right ear the audiometry recorded “a mild sloping to severe mixed hearing loss.”
The report stated that Mr Laxamana “is having great difficulty with the pain in his ears/head and hopes that his surgery will be performed as soon as practicably possible.”
Dr Joseph Scoppa, ENT, was qualified on behalf of the appellant. He issued two reports, 8 July 2022 and 7 March 2023. In his first report Dr Scoppa took a history simply that there had been “hearing loss for many years but over the past few years it had become more noticeable.” He noted the history of the cholesteatoma and its surgical removal with Dr North. He also noted that the surgery resulted in a total loss of hearing in the right ear. Dr Scoppa carried out an audiogram, which he said showed both the total loss of hearing in the right ear and “a very severe to profound mixed hearing loss in the left ear.” He said:[14]
“In my opinion Mr Laxamana’s hearing loss is not entirely due to industrial deafness because industrial deafness is typically a sensorineural hearing loss and my audiogram shows a left ear mixed hearing loss (a combination of sensorineural hearing loss and conductive hearing loss). Occupational noise exposure of gradual process does not cause conductive hearing loss. Conductive hearing loss is due to middle or outer ear pathology.
On the right side there is total permanent hearing loss following ear surgery. It is my understanding that in such matters where there is only one hearing ear the monaural loss in the better ear is deemed to be binaural hearing loss, and I have therefore assessed the industrial deafness in the left ear as being binaural hearing loss for the purposes of this assessment.
As noted above my audiogram shows total loss of hearing in the right ear and a mixed hearing loss in the left ear. The audiogram carried out at Australian Hearing and Balance Centre on 16 November 2021 shows similar findings.
In my opinion the sensorineural component of the hearing loss in the left ear shown on my audiogram from 2000 to 4000Hz (based upon the results of bone conduction thresholds) is consistent with industrial deafness, and in view of the history of occupational noise exposure in my opinion this sensorineural hearing loss is due to industrial deafness.
The remaining hearing loss in the left ear is not due to industrial deafness and I have therefore deducted this portion of the hearing loss as being unrelated to occupational noise exposure.
Industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000Hz. I note that the bone conduction threshold at 1500 Hz in the left ear shown on my audiogram is greater than that at 2000 Hz, and in my opinion this audiometric profile is inconsistent with the loss below 2000 Hz being due to industrial deafness.
This apportionment gives binaural hearing impairment of 26.5% after correction for presbycusis and in addition for severe tinnitus due to industrial deafness, which equates to a WPI of 13% (WorkCover Guides, Table 9.1), equating the left ear to the right ear.
The industrial deafness is permanent and stable, and has reached maximal medical improvement.” (Emphasis as written.)
[14] Appeal papers page 79.
Dr Raj, consultant ear nose and throat surgeon, reported for the respondent on 6 October 2022 and 6 December 2022. Dr Raj undertook an audiogram on 6 October 2022 He said:[15]
[15] Appeal papers pages 106-107.
“In assessing industrial deafness, the following have been considered.
a) Significant middle ear disease in both ears with marked conductive deafness.
b) Any conductive deafness tends to protect the cochlear from noise injury.
c) The severe neural losses confirm that other pathology (in this case, middle ear infection, cholesteatoma), in all likelihood, have caused these severe losses.
d) A twenty-year noise exposure is unlikely to affect the lower frequencies.
e) A 60dB loss at 2000Hz is also not consistent with a twenty-year exposure to noise, especially in the presence of conductive deafness, protecting the cochlear.
f) Similarly, a l00dB loss at 4000Hz is inconsistent with industrial deafness. Dr Scoppa has recorded 70dB at 4000Hz. In severe deafness, these readings can vary. It is reasonable to use the value of 70dB at 4000Hz for the calculation, and I have done so. The alternative is to use l00dB at 4000Hz but then apply the 323 deduction (10%). Using either method produces the same value of 9% WPI.
Considering all the above, I assessed the losses at 3000-4000Hz on the left and equal quantum on the right due to industrial deafness.”
Dr Raj thought that Mr Laxamana did benefit from his hearing aid on the left but on the right he might need a cochlear implant. He assessed a WPI of 9% on a finding of 83.6 BHI.
In a supplementary report dated 6 December 2022[16] on additional information given to him, Dr Raj said:
“Based on the above information, I have now reconsidered the assessment. He has no industrial deafness. All of his losses are due to other pathology”.
[16] Appeal papers page 112.
The additional information was:
(a) CT scan dated 5 November 2022 previous surgery and ossicular prosthesis on the right, and thickening of drum on the left.
(b) History of sudden onset of sensory neural hearing loss on the non-operated left side as per history on MRI Scan report of 25 March 2022.
(c) Undated but worked out from age -2017 audiogram showing normal bone thresholds at 2000-4000Hz and severe conductive deafness of 80dB on the right due to cholesteatoma.
(d) Audiogram 2018 shows normal air and bone thresholds at 2000-4000Hz on the left.
(e) Discussion document with the patient indicating possible causes of sudden hearing loss on the left. (He has diabetes.)
(f) Various doctors' reports suggesting bilateral ear disease.
Dr Raj explained that the evidence established that at the time of the first audiogram Mr Laxamana was not suffering industrial deafness. This opinion has not been supported by the respondent by virtue of its concession that injury was no longer in issue, and may also be put to one side.
Dr Scoppa was asked to comment on Dr Raj’s second report of 7 March 2023.[17] He did not address whether Dr Raj’s interpretation of the audiogram was correct or not, but disagreed on the basis that the audiogram was unreliable. He said:
“In my opinion prior audiometry should always be considered, but the assessment of industrial deafness should be based on one’s own audiogram, and not on past audiometric carried out by another individual on an unknown date without an accompanying formal report and comment on testing and reliability.”
[17] Appeal papers page 83.
We agree, with respect, that it is preferable that an assessment of industrial deafness be based on a reliable and contemporaneous audiogram. The difficulty in this case is that none of the audiograms since 2017 can be considered to reflect Mr Laxamana’s occupational hearing losses in each ear in view of the altered state of Mr Laxamana’s hearing following his surgery for his unrelated right ear cholesteatoma, and his progressive / sudden unrelated left hearing losses in about November 2021.
In the final analysis the Appeal Panel is faced with an assessment which must rely on the provisions of Chapter 1.23 of the Guides:
“Conditions that are not covered in the Guidelines – equivalent or analogous conditions 1.23 AMA5 (p 11) states:
‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’
The assessor must stay within the body part/region when using analogy.
The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.’
…”
As mentioned above, this is an unusual situation. The impairment ratings provided do not cover every factual situation, as the assessment of industrial deafness is dependent, amongst other things, on a valid audiogram that reflects his occupational hearing loss at the deemed date of injury on 12 July 2022. It is not possible to assess the effect of industrial noise on Mr Laxamana’s hearing on the right side as he has had no hearing there since 2018, and he has had unrelated progressive/sudden left hearing loss ion about November 2021. The task of the Medical Assessor was to assess the effect of exposure to industrial noise up to the deemed date of 12 July 2022. We concur with Dr Scoppa that the most appropriate way to assess what that hearing loss might have been between 2018 and 2022 is to deem the monaural loss in the left ear to be a binaural hearing loss. Indeed, such an approach has been mandated by Chapter 9.12 of the Guides.
The most contemporaneous records of Mr Laxamana’s hearing before he was surgically treated were firstly an audiogram that both Dr Scoppa and Dr Raj described as “undated.,” but which both he and Dr Scoppa accepted as being taken in 2017. Dr Scoppa thought that it showed “essentially normal” hearing in the left ear. Dr Raj did not comment on the left ear.
The second was dated 6 September 2017 and was taken at the request of the ENT Registrar, Westmead Hospital. Dr Scoppa thought that it showed “an essentially sensorineural hearing loss in the left ear.” Dr Raj did not consider this audiogram.
The third audiogram was dated 23 November 2017, taken at the behest of Dr North prior to the right cholesteatoma surgery. Dr North thought that the audiogram showed on the left side “a normal tympanogram, but again. a mixed hearing loss, with the bone line sitting around 40 dB in the low frequencies. with a 30 dB loss in the higher frequencies. There is a small air bone gap again in the lower frequencies, of about 20-30 dB.”
Dr Scoppa noted Dr North’s comment that there were “findings of bilateral mixed hearing loss.” Dr Raj did not comment on this report.
We share Dr Scoppa’s misgivings about the reliability of the undated audiogram. There was no report on the audiology, both experts had to guess when it had been made, and crucially it was not supported by the other two audiograms that were taken on 6 September and 23 November 2017, prior to the surgery on the right ear, which did show sensorineural loss of hearing.
We are satisfied that there was an impairment caused by Mr Laxamana’s exposure to industrial noise - indeed the Medical Assessor and both experts accepted the proposition that the exposure was sufficient to cause industrial deafness.
The essential difference between the opinions of Dr Raj on 6 October 2022 and Dr Scoppa on 8 July 2022 was the frequency at which the binaural hearing impairment could be ascribed to industrial deafness. Dr Raj initially considered the range 3000 cps was applicable, resulting in an entitlement of 9%, whereas Dr Scoppa advised that the range from 2000 to 4000 cps were consistent with industrial deafness.
With respect, we find both assessments to be compromised by the fact that they relied on audiograms that had been affected by the unrelated December 2017 surgery and the unrelated progressive/sudden left hearing loss on about November 2021. The Appeal Panel determined that it was preferable to work from the last reliable audiogram that showed occupational hearing loss at 3000 and 4000 cps in the left ear as it was prior to the surgical intervention and prior to the left unrelated progressive / sudden hearing losses on about November 2021. The Appeal Panel have equated the right ear to the left ear and assesses 3.1% binaural hearing loss and extrapolated a linear loss therefrom over the next five years to assess 4.1% binaural hearing loss at the deemed date of injury of 12 July 2022.
The Appeal Panel has taken the audiogram carried out at the request of the ENT Registrar at Westmead Hospital on 6 September 2017 as representing the most accurate picture of Mr Laxamana’s impairment from industrial deafness at that time. Doing the best we can with assessing the subsequent progress of the impairment from that baseline, on the balance of probabilities, we make the findings set out in the new certificate below.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 October 2023 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: | W5618/23 |
Applicant: | Randie Laxamana |
Respondent: | Graphic Packaging International Australia Converting Ltd |
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 Medical Assessor Kenneth Howison and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table 4 - 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 or greater than 100 Air Bone | Total % BHI | Occupational % BHI According to Westmead Audiogram and using thresholds for the left ear |
| 12 July 2022 | 500 | 65 60 | - | 15 | 0 |
| 1000 | 75 55 | - | 22 | 0 | |
| 1500 | 75 70 | - | 17.6 | 0 | |
| 2000 | 80 60 | - | 14 | 0 | |
| 3000 | 85 70 | - | 9.6 | 2.3 | |
| 4000 | 90 70 | - | 9.8 | 0.8 = 3.1%, x 20/15 = 4.1% | |
| TOTAL % BHI: 88 | |||||
| Less non-related loss: 83.9 | |||||
| Less Presbyacusis correction: 0.2 | |||||
| Add % of severe tinnitus: 2 | |||||
| Adjusted total % BHI: 5.9 | |||||
| Resultant total BHI of 5.9% = 0% 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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