Le v F Muller Pty Limited
[2022] NSWPICMP 41
•10 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Le v F Muller Pty Limited [2022] NSWPICMP 41 |
| APPELLANT: | Nhut Duy Le |
| RESPONDENT: | F Muller Pty Limited |
| APPEAL PANEL: | Member William Dalley Dr Joseph Scoppa Dr Brian Williams |
| DATE OF DECISION: | 10 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of demonstrable error by Medical Assessor in determining that the appellant was not exposed to noise the nature of which his injury was due; the respondent conceded error; Held- error established; Pereira v Siemens Ltd applied; appellant worker assessed in respect of 4 kHz and 3 kHz as resulting from exposure to noise in the workplace on the balance of probabilities; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 December 2021 Nhut Duy Le lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Payten, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 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 grounds 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.
This matter was assessed under the table of disabilities.
RELEVANT FACTUAL BACKGROUND
Nhut Duy Le, the appellant, worked in noisy employment in New South Wales from late 1986 to November 1990 as a process worker, employed by the respondent, F Muller Pty Ltd. He undertook no other noisy employment in New South Wales.
Mr Le left the workforce in 1997 at the age of 49. In 2011 he consulted a medical practitioner complaining of hearing difficulty. Mr Le did not pursue any remedy at that time.
In September 2020 Mr Le’s hearing was assessed by an ear nose and throat specialist,
Dr Thandavan Raj at the request of Mr Le’s solicitors. Dr Raj reported a history of noisy employment in Vietnam as a civil engineer and subsequently with the respondent over a period recorded as from 1987 to 1993. Dr Raj assessed Mr Le as having 20% binaural hearing impairment (BHI) as a result of what he believed to be 23 years of exposure to noisy employment.Mr Le’s legal representatives made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act), in accordance with Dr Raj’s assessment.
Mr Le was seen by Dr Peter Winkler, Ear, Nose and Throat specialist, at the request of the workers compensation insurer in November 2020. Dr Winkler recorded a history of noisy employment prior to Mr Le coming to Australia in 1986 and thereafter noisy employment with the respondent from 1986 to 1990. Dr Winkler assessed Mr Le as having no hearing impairment due to noisy employment in New South Wales.
The medical dispute concerning the extent of hearing loss was referred for assessment to the Medical Assessor who examined Mr Le on 15 November 2021. At that time Mr Le was aged 72.
The Medical Assessor assessed Mr Le as suffering 45.9% BHI. He assessed employment-related, noise induced binaural hearing impairment at 0%, concluding that Mr Le was “not exposed to noise of sufficient loudness and duration to have caused more than a 0% binaural hearing impairment” in the course of his employment with the respondent.
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.
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 because sufficient information is available to the Panel to enable the Panel to determine the appeal.
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into error in concluding that the whole of Mr Le’s hearing loss impairment was “due to factors other than noise exposure”. The appellant further submitted that, in referring to figure 128-2 of Cummings Otolaryngology: Head and Neck Surgery Fourth Edition, the Medical Assessor had applied an incorrect criterion.
In reply, the respondent did not oppose the arguments advanced by the appellant.
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.
With the assistance of a Vietnamese interpreter, the Medical Assessor obtained a history of service with the Vietnamese Army for one year in 1972 during which time Mr Le was exposed to small arms training on the rifle range of short duration wearing earplugs. The Medical Assessor noted that Mr Le was then employed as an engineer from 1973 in the design of roads and bridges which the Medical Assessor understood was a desk job with no exposure to noise. Following arrival in Australia in 1986 the Medical Assessor recorded employment with the respondent from November 1986 to November 1990. He noted that this was noisy employment with mandatory ear protection in the last year of employment.
The Medical Assessor detailed the tasks performed by Mr Le in the course of his employment with the respondent and noted that Mr Le had been employed in quiet employment following his ceasing work with the respondent in November 1990.
The Medical Assessor reported:
“Mr Le has a moderate to severe bilateral sensorineural hearing loss. The noise was exposed to both in Vietnam and Australia was insufficient to cause any hearing loss and therefore the sensorineural deafness evidence on his audiogram has been caused by factors other than noise such as constitutional factors and also presbycusis.”
The Medical Assessor reported that a proportion of loss was due to a previous injury, pre-existing condition or abnormality and that there had been no further loss. He concluded:
“Mr Le while employed by F Muller Pty Ltd was not exposed to sufficient noise while working without ear protection for three years and with ear protection for one year to have suffered noise induced sensorineural hearing loss. His binaural hearing impairment due to work in Australia is therefore 0%.
In making that assessment I have taken account of the following matters:
The very much worse hearing he has experienced in the past 10 years as compared to the first 10 years after ceasing noisy employment with Muller is not due to noise trauma as damage to the cochlear ceases after noise exposure ceases. The marked deterioration in the past 10 years is more than would be expected due to presbycusis alone and points to a constitutional cause.
The noise level at Mullers was sufficient to make it necessary to have to raise the voice to be heard by a young person with good hearing at one metre, indicating that the noise levels were about 95dBA.
I note that he wore earplugs for one year. These would have attenuated the noise levels by 15 dBA so that the noise he was exposed to was below 85 dBA at 80 dBA and not capable of causing noise trauma during that one-year period.
I note his history of noise exposure at Mullers without any protection for a period of three years. I have used figure 128-2 taken from “Cummings Otolaryngology: Head and Neck Surgery” 4th Edition which demonstrates the hearing loss is experienced by press operators over a period of 2 to 3 years, the level of noise being 99 dB as shown in graphs A and B[1].
This level of 99 dB is over twice as loud as the 95 dB Mr Le was exposed to and if present would have made it necessary to shout to be heard at one metre rather than just raise the voice.
It can be seen from graph B that exposure to very loud noise of 99 dB over a 2 to 3 year period does not cause the hearing at 4 kHz to fall below the level of 20 dB. According to the NAL Tables of 1976, if hearing is not worse than 20 dB at 4 kHz and lower frequencies, there is a 0% binaural hearing impairment.
In my opinion he was not exposed to noise of sufficient loudness and duration to have caused more than a 0% binaural hearing impairment.”
[1] Not reproduced in this Statement of Reasons as unnecessary.
The appellant appropriately notes the provisions of section 17 of the 1987 Act. That section relevant provides:
“17 LOSS OF HEARING--SPECIAL PROVISIONS
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect--
(a) for the purposes of this Act, the injury shall be deemed to have happened--
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due--at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury--on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b) ……
(c) compensation is payable by--
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury--that employer, or
(ii) where the worker was not so employed--the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
………….
(2) Without limiting the generality of subsection (1), the condition known as "boilermaker's deafness" and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
The medical dispute was referred to the Medical Assessor on 12 August 2021 pursuant to consent orders which provided for the referral of the dispute “with respect to hearing loss for injury deemed to have happened on 9 November 1990”. Garling J in Pereira v Siemens Ltd[2] remarked with respect to similar orders: “The effect of these orders was that there was no longer any issue about whether the noise to which the plaintiff was exposed whilst working for the employer was of a nature capable of leading to a loss of hearing”.[3]
[2] [2015] NSWSC 1133 (Pereira)
[3] At [32]
Garling J discussed section 17 in Pereira:
“[71] It is convenient to commence with remarks about s 17 of the 1987 Act. It has been set out above at [54]. The 1987 Act is intended to provide compensation for workers who receive injuries whilst at work.
[72] The prime operative provision is s 9 which provides that a worker who has received an injury shall receive compensation from the worker’s employer in respect of employment which is connected with NSW. It does not matter whether the worker was injured in NSW so long as the employment is connected with the State.
[73] Section 9A provides that no compensation is payable in respect of an injury, leaving aside a disease, unless the relevant employment was a substantial contributing factor to the injury. These provisions are contained within Part 2 of the Act, as is s 17.
[74] Section 15 deals with diseases of gradual process. Section 16 deals with an aggravation of a disease. Section 17 deals with loss of hearing and, as is to be observed, is described as a “Special Provision”.
[75] As Kirby P said in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at 55, there is an element of artificiality in the Section. The injury is deemed to have happened at an arbitrary time, namely when the notice of injury is given. The injury is assigned to the employer at the time. But that is only effective if that employer employed the worker in employment ‘.. the nature of which ...’ the injury was due. His Honour noted the beneficial purposes of such arbitrary elements.
[76] It is not immediately obvious that, although the injury is deemed to have happened on a particular day, the injury of which deafness is both the symptom and the resultant impairment was caused by anything other than a gradual process. It is not a particular injury which can be fixed by date, time and place.
[77] On the contrary, the purpose of s 17, and its effect, is to relieve a worker of any obligation to identify and prove with precision when the injury occurred, where it occurred, or how it occurred. Rather, for the purposes of compensation for employees in NSW, the legislation deems an injury to have happened at an identified time.
[78] The second matter to observe about s 17, is that generally a worker claiming compensation under the 1987 Act has to demonstrate that the employment concerned was a substantial contributing factor. For a successful claim for industrial deafness, by virtue of the provisions of s 17, it is sufficient for a worker to establish that the employment in which he or she was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. Attention is directed not to whether the employment engaged in at the time the claim was lodged actually caused the loss of hearing, but rather whether the “tendencies, incidents or characteristics” of that employment were of a type which could give rise to the injury in fact suffered: see Lobley at 58-61 per Cole JA, Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 at 448 per Dickson J; Tame v Commonwealth Collieries Pty Ltd [1947] NSWStRp 9; (1947) 47 SR (NSW) 269 at 272 per Jordan CJ.
[79] Where the phrase ‘could’ is used in Lobley, it means ‘could as a matter of real risk’, and not ‘could as a matter of the barest possibility’: Ambulance Service of NSW v Daniel [2000] NSWCA 116 at [37] per Hodgson CJ in Eq, Sheller and Beazley JJA agreeing.”
The Panel accepts the submissions of the appellant to the effect that the Medical Assessor fell into error in basing his assessment on a conclusion that Mr Le, when employed by the respondent, was not in employment “the nature of which the injury was due”. As noted by the appellant, it fell to the Commission to determine that the worker had suffered injury[4], in this case an injury in the nature of industrial deafness, while employed in an employment to the nature of which the injury was due.
[4] Bindah v Carter Holt Wood Products Aust. Pty Ltd [2014] NSWCA 264
The “medical dispute” referred for assessment to the Medical Assessor was the dispute as to the degree of hearing loss resulting from exposure to noise.
The Medical Assessor’s reference to “Cummings Otolaryngology: Head and Neck Surgery” demonstrated that the Medical Assessor had inappropriately considered that the employment was not employment of a nature to which the injury was due. This reference could be thought of as resort to incorrect criteria but, perhaps more appropriately is considered as demonstrable error, forming part of the Medical Assessor’s reasoning with relation to causation.
The Panel is satisfied that demonstrable error has been established and it is necessary for the Panel to consider the whole of the evidence in order to reassess the extent, if any, of hearing loss attributable to workplace noise.
The Panel notes that the AMS stated that using the NAL 1976 tables, “if hearing is not worse than 20 dB at 4 kHz and lower frequencies there is 0% BHL”. That statement is not correct with respect to frequencies below 4 kHz. The NAL 1976 tables specify that a 20 dB hearing loss at 4 kHz is 0.0% but, at lower frequencies, impairment is assessed[5]. The Panel notes this correction as an observation only. It did not form part of the reasoning of the Panel in resolving the issues in dispute between the parties.
[5]A 20 dB hearing loss at
Neither party alleges that the Medical Assessor’s assessment of total BHI was not appropriate and the Panel accepts that the Medical Assessor appropriately assessed percentage loss of BHI at 45.9% in accordance with the Guidelines.
The Panel accepts that Mr Le was found to be suffering 45.9% BHI upon examination by the Medical Assessor. The Medical Assessor members of the Panel are satisfied that hearing loss at below 3 kHz is unlikely to have been attributable to exposure to workplace noise, given only exposure to noise in the workplace over a four-year period.
The Medical Assessors members of the Panel agree that it is probable that hearing loss at the 3 kHz and 4 kHz levels are attributable to noise exposure on the basis of exposure to the workplace noise between November 1986 and November 1990. Of the 45.9% BHI assessed, the proportion due to causes other than noise induced deafness is assessed at 33% BHI. At age 72 the appropriate allowance for presbycusis in respect of the 3 kHz and 4 kHz loss is 3.7% in respect of those frequencies. The Panel concludes that Mr Le suffers 8.9% BHI as a result of the subject injury, hearing loss deemed to have occurred on 9 November 1990 as a result of exposure to noise in the workplace.
Neither party addressed in his submissions to the Medical Assessor’s conclusion that no deduction was to be made pursuant to section 323 of the 1998 Act.
The evidence with regard to prior exposure to noise in the workplace is contradictory. Dr Raj, who examined Mr Le in September 2020 recorded that Mr Le had been employed as a Civil Engineer for about 10 years in Vietnam. He reported that Mr Le “was working in engineering sites mostly roadbuilding. All his projects were very noisy and there was significant noise exposure in Vietnam.” Dr Raj reported a history of 23 years exposure to noise. The Panel was unable to determine how that figure was calculated, given that Dr Raj recorded only 10 years of exposure as a civil engineer and four years exposure in New South Wales with the respondent.
Dr Winkler recorded that Mr Le:
“worked for 10 years as a civil engineer in Vietnam and was exposed to the noise of road and bridge construction. He was an officer in the Vietnamese army and also worked on road and bridge construction as a civil engineer in the Army. He also had weapons training in the Vietnamese army. The history that he gave indicates that the noise to which he was exposed in Vietnam was capable of causing noise induced hearing loss.”
The Medical Assessor recorded a history of no relevant exposure to noise prior to Mr Le coming to Australia.
Mr Le’s statement does not assist in assessing whether any deduction is to be made pursuant to section 323 of the 1998 Act. The sole evidence as to employment in Vietnam is the statement “I worked as a construction supervisor and designer for the Ministry of Public Works”.
In Pereira, Garling J noted that the worker had undertaken employment before coming to Australia. He observed:
“Whilst there was factual material available which described some of the work which took place in Pakistan, nowhere was there any evidence which would enable a conclusion to be drawn that the level of noise to which the plaintiff was exposed in Pakistan, was of a nature which would have, by a gradual process, resulted in a loss of hearing. Nowhere was there any material which allowed the Appeal Panel or the AMS, to conclude that the plaintiff had been exposed to an unacceptable noise level for a sufficient length of time, and of the kind of noise level which, on the probabilities, would have resulted in an injury.”[6]
[6] At [100]
The Panel accepts that position the present case is similar. It could not be said that there was evidence of a pre-existing condition which contributed to the overall level of impairment. The contradictory evidence as to employment in Vietnam does not allow an assessment of the level of noise experienced or the duration of exposure. Accordingly, there is no basis for a deduction pursuant to section 323 of the 1998 Act.
The Panel is satisfied that error has been established and upon assessment on the basis of the evidence available upon examination by the Medical Assessor, the Panel has reached the different conclusion as to assessment of the BHI resulting from injury as described in section 17 of the 1987 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 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 before 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 Robert Payten and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table 1 – methods of assessment - Table of Disabilities and 1976 CAL Tables
| Body Part (as per Table of Disabilities) Industrial Deafness | Notional date of injury | Percentage loss of BHI (total BHI, as at the date of examination, from all causes - noise, injuries, conditions and abnormalities) | Less proportion due to pre-existing injury abnormality or condition (but excluding previous claims for industrial deafness and presbycusis) | Less proportion due to Presbycusis | Total percentage loss of Industrial Deafness (including all previous claims (as per Table of Disabilities) |
| Hearing loss percentages | 9/11/21 | 45.9% | 33% | 3.7% | 8.9% |
Mr William Dalley
Member
Joseph Scoppa
Medical Assessor
Brian Williams
Medical Assessor
10 March 2022
0.5 kHz is 0.7% loss of hearing
1 kHz is 0.9% loss of hearing
1.5 kHz is 0.7% loss of hearing
2 kHz is 0.5% loss of hearing
3 kHz is 0.2% loss of hearing, and
4 kHz is 0.0 % loss of hearing
0
5
0