Lodge v John Lodge Water Cartage Pty Ltd
[2025] NSWPICMP 486
•3 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lodge v John Lodge Water Cartage Pty Ltd [2025] NSWPICMP 486 |
| APPELLANT: | John Lodge |
| RESPONDENT: | John Lodge Water Cartage Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Henley Harrison |
| MEDICAL ASSESSOR: | Dr Thandavan Raj |
| DATE OF DECISION: | 3 July 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of permanent impairment for hearing loss; issue whether Medical Assessor (MA) based assessment on assumption that hearing losses below 2000Hz are not attributable to hazardous noise; issue whether MA erred by excluding hearing loss below 2000Hz in impairment assessment; Appeal Panel held MA based assessment on audiogram obtained and was entitled to do so; configuration of audiogram inconsistent with hearing loss below 2000Hz due to hazardous noise; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 March 2025 John Lodge, 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 3 March 2025.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2000 with John Lodge Water Cartage Pty Ltd, with whom he remains employed. He has been exposed to hazardous noise during his employment. Prior to his employment with the respondent, the appellant was also employed with various organisations from 1973 where the nature of his employment was such that it was likely to cause a loss of hearing by gradual process.
It is uncontroversial the appellant has suffered an injury of hearing loss. It would seem he notified the respondent of that on 5 April 202, which, in accordance with s 17(1) of the Workers Compensation Act 1987 (the 1987 Act), is deemed to be the date on which his injury happened. All up, therefore, he had been employed in noisy employment for 51 years by the time he notified the respondent of his injury.
On 10 July 2024 the appellant’s solicitors wrote by email to the respondent’s insurer advising it that the appellant claimed compensation from the respondent under s 66 of the 1987 Act for 16% whole person impairment (WPI) that the appellant said resulted from his injury of hearing loss, and also claimed compensation under s 60 for the cost of hearing aids as treatment of that injury. The appellant’s solicitors attached to their correspondence, by way of providing evidence to support the appellant’s claims, a report of ear nose and throat surgeon Dr Allan Forrest dated 22 June 2024 and a report and quotation for hearing aids prepared by audiologist Kylie Chung of Amplifon National Hearing Centre dated
2 February 2024.Dr Forrest in his report advised the appellant’s solicitors that he examined the appellant on 20 June 2024. He advised that a professional audiologist, Mr Rajib Ahmed, carried out an audiogram of the appellant in a sound proof booth at Audika Newcastle. That revealed that the appellant had hearing losses over all thresholds from and including the frequencies 500Hz to 4000Hz, such that, in his opinion, the appellant had a total binaural hearing impairment of 35.9%. Dr Forrest advised that based on the air conduction frequencies plotted in that audiogram he considered the loss of hearing the appellant had from and including the frequencies 1000Hz to 4000Hz on both his right and left side is noise induced hearing loss. That loss represented a binaural hearing impairment of 35.3%, which after allowance for presbycusis meant, according to Dr Forrest, the appellant had a binaural hearing loss due to his noisy employment of 32.4%, which equated to 16% WPI.
The report and quotation of Ms Chung also included an audiogram that revealed that the appellant had hearing losses over the frequencies 500Hz to 4000Hz that she advised represented a binaural hearing loss of 40.1%.
After receiving the appellant’s claim, the respondent’s insurer arranged for the appellant to be examined by Dr Sylvester Fernandes, an ear, nose, throat and facial plastic surgeon. In a report he provided the insurer he revealed he also conducted an audiogram of the appellant’s hearing. He advised that audiogram revealed the appellant had hearing losses over all frequencies from and including 500Hz to 4000Hz, such that the appellant had a total binaural hearing impairment of 26%. He noted that all those hearing losses were progressive such that the hearing loss at 4000Hz is greater than that at 3000Hz and so on and so on. Dr Fernandes expressed the view that based on the nature and duration of the appellant’s occupational noise exposure and the nature and extent of his hearing losses, the appellant’s hearing losses from and including the frequency of 1000Hz to and including 4000Hz were caused by occupational noise. Those losses amounted to a binaural hearing impairment of 22.9%, which after a deduction for presbycusis converted to 20% binaural hearing impairment, which in turn converted to 10% WPI.
The respondent’s insurer, by a notice it issued to the appellant on 2 September 2024 under s 78 of the 1998 Act, advised the appellant that it disputed he was entitled to compensation for permanent impairment from his injury. The insurer further advised the respondent in that notice that it disputed he was entitled to compensation for permanent impairment because it relied on the report of Dr Fernandes who had assessed his permanent impairment from his injury of hearing loss as 8% WPI which was less than the threshold stipulated by s 66 of the 1987 Act for him to be entitled to compensation for permanent impairment.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation for permanent impairment. A delegate of the President of the Commission thereupon referred the matter to the Medical Assessor, who examined the appellant on 20 February 2025. As said, the Medical Assessor issued the MAC on 3 March 2025 in which he certified he assessed the degree of the appellant’s permanent impairment from his injury of hearing loss is 8% WPI. The Medical Assessor noted in the MAC that he had arranged for an accredited audiometrist Julia Sham to conduct pure tone audiometry of the appellant’s hearing. He noted that Ms Sham conducted that audiometry using a calibrated audiometer and did so in a suitable sound treated room that had been tested to meet the specifications of AS/NZS 1269. He attached a copy of the audiogram produced from that audiometry. He said that he considered the auditory thresholds revealed in that to be valid and that the appellant’s responses were repeatable. That audiogram, in tabulated form, revealed the appellant had the following losses of hearing:
Frequency Hz
Left dB HL
Air bone
Right dB HL
Air bone
Total percentage BHI
1000
35
35
5.7
1500
55
55
11.2
2000
55
80
9.0
3000
55
95
6.1
4000
55
105
5.7
The Medical Assessor considered that the appellant’s hearing losses at the frequencies 2000, 3000 and 4000 Hz in his left ear had been damaged by unacceptable noise levels and that an equal amount of hearing loss in his right ear was also due to unacceptable noise levels. In other words, the Medical Assessor considered the appellant’s hearing losses revealed in the audiogram in his right ear are at the frequencies of 2000Hz, 3000Hz and 4000Hz above those revealed at those frequencies in the left ear were unrelated to noise induced hearing loss.
The Medical Assessor also considered that the appellant’s hearing losses revealed in the audiogram below 2000Hz were not due to noise exposure. His reasoning for that was set out in part 10b of the MAC and is as follows:
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first and only with further noise damage are the lower frequencies effected progressively gradually from the higher frequencies to lower frequencies; that is to say 1500 Hz should be affected less than 2000 Hz and 1000 Hz less than 1500 Hz and so on. The progression of hearing loss in the low frequencies needs to be clinically significant if this damage is from exposure to loud noise. Continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to have a rest period.”
The end result being, as the Medical Assessor explained, is that he considered the appellant had a total binaural hearing impairment of 39.7%, of which only 19.2%, being his hearing losses at 2000Hz, 3000Hz and 4000Hz with the hearing loss in his right being equated to the hearing loss in the left, is due to his noisy employment. When a correction for presbycusis was done to that, that loss reduced to a binaural hearing impairment of 15.9%, which converts to 8% WPI.
The Medical Assessor noted that his audiogram differed from the audiogram Dr Forrest had carried out. He noted that Dr Forrest had included in his assessment of the appellant’s permanent impairment from the appellant’s injury, the appellant’s losses of hearing in his right ear above the hearing loss in the left ear. With respect to that, the Medical Assessor explained that “noise induced hearing loss is basically bilaterally symmetrical and progressive from the low to high frequencies”. That was his reason for disagreeing with
Dr Forrest’s finding that all the appellant’s hearing loss in his right ear is noise induced.The Medical Assessor also said he disagreed with Dr Forrest including all the appellant’s hearing losses at the frequencies of 1000Hz and above. He said by way of explanation that “the frequencies 2000, 3000 and 4000Hz are the frequencies usually “measured [sic: damaged] by loud industrial noise”.
The Medical Assessor further explained that on his audiogram the loss of hearing at the frequency of 1000Hz is the same as the appellant’s loss of hearing at 2000Hz. This reference by the Medical Assessor to 1000Hz is an obvious typographical error and should be 1500Hz because the audiogram that Ms Sham conducted revealed the appellant’s loss of hearing at the frequency of 1500Hz is the same as the frequency of 2000Hz whereas the appellant’s loss of hearing at 1000Hz is below that of both 1500Hz and 2000Hz.
The Medical Assessor noted that his audiogram was more similar to the audiogram
Dr Fernandes obtained. He said he agreed with Dr Fernandes’ conclusion that the extra loss of hearing in the appellant’s right ear is not noise induced and Dr Fernandes’ conclusion that the appellant’s hearing loss in the right ear should be equated to the hearing loss in his left ear. He said that he disagreed with Dr Fernandes accepting the appellant’s loss of hearing at the frequency of 1000Hz and 1500Hz had been due to loud industrial noise and he highlighted that on the audiogram he obtained the appellant’s loss of hearing at these frequencies was the same. Again, that is not correct and is an obvious typographical error because his audiogram revealed the appellant’s hearing loss at the frequency of 1500Hz is the same as 2000Hz and that the appellant’s hearing loss at the frequency of 1000Hz was higher.
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 respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the grounds for appeal on which it relied, and consequently the Appeal Panel neither has power nor reason to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted the Medical Assessor took into account an irrelevant consideration because the Medical Assessor excluded his hearing losses below the frequency of 2000Hz on the basis that the frequencies from and above 2000Hz “are the frequencies usually measured [sic: damaged] by loud industrial noise”. That is, as the Appeal Panel understood this submission, the Medical Assessor erred because he assessed the appellant’s permanent impairment based on assumption, rather than the evidence, that assumption being it is only hearing losses above 2000Hz that are measured as being due to industrial noise. The appellant submitted that it cannot be assumed that hearing losses at the frequencies from and including 500 to 1500Hz are to be disallowed because they are not generally involved in noise induced hearing loss.
The appellant submitted too that the Medical Assessor by doing this also applied incorrect criteria to assess the degree of his permanent impairment from his hearing loss.
The appellant submitted that the Medical Assessor was wrong to exclude his hearing losses below the frequency of 2000Hz because the Medical Assessor’s audiogram revealed his loss of hearing at 1000Hz was the same as 2000Hz.
The appellant submitted that the Medical Assessor’s statement that noise induced hearing loss is bilaterally symmetrical and progressive from the low to high frequency demonstrates an error in his assessment because his hearing loss at 1000Hz and 1500Hz is bilaterally symmetrical and his hearing loss from 1000Hz to 1500Hz is progressive.
The appellant submitted that the Medical Assessor’s reasoning to reach his conclusion that his hearing losses below the frequency of 2000Hz are not due to industrial noise did not reconcile with the fact that he has been employed in a noisy environment over a period of 40 years. The appellant submitted that the Medical Assessor did not explain adequately his path of reasoning particularly in the circumstance where the two medical experts that the parties had qualified both considered his losses at 1000Hz and above were related to occupational noise.
In reply, the respondent submitted that the Medical Assessor’s exclusion of the appellant’s hearing loss below the frequency of 2000Hz was based on his clinical judgment and not assumption. The respondent submitted that the Medical Assessor’s reasoning for excluding those losses was because noise induced hearing loss is typically bilaterally symmetrical and progressive from low to high frequency and that the progression of hearing loss from low frequencies to high frequencies need to be clinically significant if this damage is due to exposure to loud noise.
The respondent submitted that the Medical Assessor considered the duration and nature of the appellant’s employment when assessing whether the appellant’s losses at the several frequencies recorded in the audiogram were due to noisy employment.
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.
It is the case, as the appellant submitted, that an assessment of an impairment from an injury of hearing loss cannot be based upon assumption. That is to say the Medical Assessor would have erred had he based his assessment on an assumption that it is only the hearing losses at the frequencies from and above 2000Hz that are due to occupational noise. But that is not what the Medical Assessor did.
The MAC must be read as a whole to ascertain what the Medical Assessor’s reasons for his assessment are. The reasons the Medical Assessor provided for his assessment of the appellant’s degree of permanent impairment from his injury of hearing loss included what he set out in part 10b of the MAC. His reasons expressed therein were that noise induced hearing loss is bilaterally symmetrical and progressive from the low to high frequencies. His reasons included that this is because noise damages the inner ear by affecting the higher frequencies first and the lower frequencies are only affected with further noise, with that further damage occurring gradually. He illustrated his reasoning by providing an example, that example being that for a loss of hearing at the frequency of 1500Hz to be due to noise induced hearing loss that loss would need to be less than the hearing loss at the frequency of 2000Hz, and similarly for the loss of any loss of hearing at the frequency of 1000Hz to be due to occupational noise then that hearing loss would need to be less than any hearing loss at 1500Hz.
That part of the Medical Assessor’s reasoning is correct.
The Medical Assessor’s statement within part 10c of the MAC, wherein he compared his assessment with Dr Forrest’s assessment, that “the frequencies 2000, 3000 and 4000 Hz are the frequencies usually measured [sic: damaged] by loud industrial noise” is also correct as a general statement. In the Appeal Panel’s view, however, that statement of the Medical Assessor was not crucial to his reasoning for not including the appellant’s loss of hearing below 2000Hz when assessing the degree of the appellant’s permanent impairment from his injury. This is because the Medical Assessor ultimately based his assessment on the configuration of the audiogram that Ms Sham obtained.
The Appeal Panel notes that hearing loss due to occupational noise is the consequence of damage occurring to the hair cells in the cochlear. The cochlear is part of the inner ear and is similar in structure to a seashell. It is approximately 33mm in length. It has hair cells along its length and damage to those hair cells from occupational noise will cause hearing loss. The hair cells that commence approximately 10mm along the length of the cochlear from its basal opening are the first to be damaged by exposure to hazardous occupational noise, and the hearing loss at frequencies affected in this region of the cochlear are at 3, 4 and 6 kHz. Whether hearing loss in frequencies below these is due to hazardous noise will depend on the shape or configuration of the audiogram. It is the audiogram that will determine whether the loss at any frequency is due to hazardous noise. Where an audiogram reveals a loss of hearing at the frequency of 1500 Hz that is equal or greater than the hearing loss revealed at 2000 Hz then the loss of hearing at the frequency of 1500 Hz is not due to hazardous noise. The configuration of such an audiogram is not consistent with a hearing loss that is due to hazardous noise. It is not consistent with the progressive nature of the damage that hazardous noise causes to the hair cells along the cochlear.
The audiogram the Medical Assessor obtained revealed that there was no progression of the appellant’s hearing loss beyond the frequency of 2000Hz, but it also revealed a progression of hearing loss below the frequency of 1500Hz. The Medical Assessor said in the MAC that the audiogram on which he relied was done using a calibrated audiometer in a sound treated room tested and shown to meet the relevant specifications and was done by an accredited audio metrist. The Medical Assessor said that he considered the auditory thresholds were valid and that the appellant’s responses were repeatable. The Medical Assessor was entitled to rely upon the results of the audiogram, rather than the audiograms that either
Dr Fernandes or Dr Forrest obtained.[2][2] Ferguson v State of New South Wales [2017] NSWSC 887 at [23]; Glen William Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [65].
The respective audiograms that Dr Forrest and Dr Fernandes obtained revealed the appellant’s hearing loss at the frequency of 1500 Hz was lower than it was at 2000Hz and hence the loss of hearing revealed by their respective audiograms at 1500 Hz was consistent with the appellant having a loss of hearing due to hazardous noise. The audiogram on which the Medical Assessor relied (and on which, as said, he was entitled to rely) did not reveal the appellant’s loss of hearing at 1500 Hz was due to hazardous noise, and to repeat that was because it was equal to what his hearing loss was at 2000 Hz.
The loss of hearing in each ear that is due to hazardous occupational noise will also be symmetrical, and this is because a worker’s ears are at an equal distance from the source of the occupational noise. Hence, a loss in one ear greater than the other will, to the extent that the loss is greater, not be the result of hazardous occupational noise.
The Medical Assessor was entitled to exercise his clinical judgment, based on the data in the audiogram Ms Sham obtained, to assess that the appellant’s loss of hearing at the frequency of 1500Hz was not related to occupational noise because it was equal to the loss of hearing that was revealed at the frequency of 2000Hz. Given that the nature of hearing loss due to hazardous occupational noise is progressive from the higher to lower frequencies, then by virtue of the appellant’s hearing loss at the level of 1500Hz being the same as at 2000Hz it was a matter for the Medical Assessor’s clinical judgment to determine whether that loss of hearing, given that it was equal to the loss of hearing at 2000Hz, was due to occupational hearing loss. The hearing loss at that level of frequency, if due to occupational noise, should have been less than the hearing loss at the frequency of 2000Hz.
The Appeal Panel accordingly finds that the Medical Assessor did not make an error by not including the appellant’s loss of hearing at the frequency of 1500Hz and by equating the appellant’s loss of hearing in his right ear with his loss of hearing in his left ear, when assessing the degree of the appellant’s permanent impairment from his injury of hearing loss.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 March 2025 should be confirmed.
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