McCord v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	McCord v Secretary, Department of Education [2022] NSWPICMP 325
APPELLANT:	Raymond John McCord
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL:	Member Carolyn Rimmer Medical Assessor Brian Williams Medical Assessor Joseph Scoppa
DATE OF DECISION:	15 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Subject matter of decision; assessment of hearing loss; appellant submitted that Medical Assessor (MA) erred in not including losses at 2000 Hz as being due to occupational noise exposure; panel satisfied that losses at 2000 Hz is not due to noise exposure after considering the audiograms and history of noise exposure; Held — Medical Assessment Certificate issued on 11 May 2022 by the MA should be confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 June 2022 Raymond John McCord (the appellant) lodged an Application to Appeal Against the Decision of Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 May 2022.
The respondent to the Appeal is the Secretary, Department of Education (the respondent), which was insured by Allianz Australia (NSW) Limited as agent for NSW Self Insurance Corporation at the relevant times.
The appellant relies on the following ground of appeal under s 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 s 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, 4^th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

In these proceedings, the appellant is claiming lump sum compensation in respect of hearing loss as a result of the injury deemed to have occurred on 13 March 2018 that occurred in the course of his employment as an industrial arts teacher with the respondent.
The matter was referred to the MA, Henley Harrison, in a Referral for Assessment of Permanent Impairment to MA dated 13 March 2022 for assessment of whole person impairment (WPI) of binaural hearing loss as a result of the injury on deemed to have occurred on 13 March 2018.
The MA examined the appellant on 28 April 2022. He assessed current binaural hearing impairment (BHI) of 71.2%. The MA made a deduction of 53% for pre-existing non-related loss and a deduction of 9.0% for presbyacusis correction. This resulted in an adjusted total of 9.2% BHI which equalled 5% WPI as a result of the injury deemed to have occurred on
13 March 2018.

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.
The appellant did not request that he be re-examined by an MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient evidence by way of medical reports and clinical investigations on which to make a determination.

EVIDENCE

Documentary 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 parts of the medical certificate given by the MA 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.
The appellant’s submissions included the following:
(a)    an examination was held on 28 April 2022 during which pure tone audiometry was carried out. The appellant accepts the audiogram obtained by the MA;
(b)    the MA provides his reasoning at point 10 of the MAC as follows:
“As stated above the history and examination are consistent with a diagnosis of occupational noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because there is generally excessive hearing loss (occupational noise exposure is usually not greater than 60 dB even in the high frequencies) and in particular the lower frequencies are not preserved at all whereas it (sic) occupational hearing loss they are except in cases of extreme and prolonged occupational noise exposure. That is not the case here. The last period of employment as an industrial arts teacher certainly exposed him to significant noise. However the previous employment as an agricultural science teacher does not seem to have done so with only small amounts of time during which he was exposed to loud noise as I have detailed in the history. In view of the foregoing, especially in view of the comparatively small exposure to occupational noise, I have apportioned the occupational hearing loss to the frequencies first affected by loud noise - 3000 and 4000 cps. Another reason for doing this is that there is almost no difference between the involvement of the frequency 2000 cps and the frequency 3000 cps whereas in occupational hearing loss there should be considerably less involvement of 2000 cps than 3000 cps so the hearing loss below 2000 cps is inconsistent with occupational noise induced hearing loss”;
(c)    the MA has erred by not including the loss at 2000 Hz in his assessment as the appellant had been exposed to a sufficient occupational noise for the loss at
2000 Hz to also have been affected;
(d)    the MA recorded an air conduction threshold of 75dB in each ear at 2000 Hz (see p7 MAC);
(e)    Professor Fagan obtained a threshold of 75dB in the left ear and 70dB in the right ear at 2000 Hz. Professor Fagan was of the opinion that the loss at this frequency was due to occupational noise exposure;
(f)    Dr Tamhane also obtained a threshold of 75dB in the left ear and 70dB in the right ear at 2000 Hz. Dr Tamhane also accepted the loss at this frequency to be due to occupational noise exposure. He stated at p5 of the Reply: “His bilateral high tone sensorineural hearing loss in the 2000 Hz, 3000 Hz and 4000 Hz frequencies, is a direct result of exposure to loud noise at work”;
(g)    at point 10c of the MAC the MA states that: “I have given my reasons for my differing apportionment and in particular point out that I believe that the other two doctors have tone and employment history is [sic] which differ significantly from mine”. This statement made by the MA is not correct and is therefore a demonstrable error;
(h)    all three doctors obtained an extremely similar threshold at 2000 Hz. All three doctors obtained a threshold of 75dB in the left ear. The difference in the right ear of 5dB between the threshold recorded by the MA and that recorded by Professor Fagan and Dr Tamhane, was negligible in the circumstances;
(i)    the MA’s statement above that the “tone” difference obtained by the other two doctors is “significantly different” is therefore not correct. The threshold obtained by all three doctors at 2000 Hz was extremely similar;
(j)    furthermore, contrary to the MA’s statement above, the work history taken by
Dr Tamhane was also very similar to that taken by the MA. Dr Tamhane has recorded similar sources of noise exposure and has differentiated between the noise exposure during the appellant’s employment as an industrial arts teacher and an agriculture/science teacher. Dr Tamhane has accepted that this history of noise exposure was sufficient to affect 2000 Hz;
(k)    the opinions of Dr Fagan and Dr Tamahane with respect to the loss at 2000 Hz should be accepted, and
(l)    the MAC should be revoked and a new MAC issued that calculates the occupational hearing loss from 2000 – 4000 Hz in both ears. This provides an occupational binaural hearing loss of 21.9% after deduction for presbycusis. This converts to 11% WPI for the injury deemed to have occurred on 13 March 2018.
The respondent’s submissions include the following:
(a)    the MA obtained the following work history (see page 2 of the MAC):
“The worker was employed by the respondent as described in his statement which I went over with him. He spent about 4 1/2 years in his last position as an industrial arts teacher when he taught metal work and woodwork and was exposed to noise as described in the statement. There was noise from machinery, grinders, saws, welding, lathes, hammering, metal stamping plus other power tools and general noise from the classes. In the presence of noise he would have to raise his voice for someone with normal hearing to understand him at a distance of about 1 metre which suggests that over an eight hour working day the noise had the potential to damage hearing. He worked eight hours a day in five days a week. Prior to that he was an agriculture science teacher at schools as described, mainly at Hurlstone Agricultural High School. He said for about three months per year he would be exposed to the noise of the tractor (engine and exhaust) four six or eight hours a week and to a great deal of noise in the piggery for about two hours a week. During some science experiments there were occasional explosions but this was only twice a year. He also supervised school social events and dances where there would be a great deal of noise for about three hours each event. These social events would have occurred about 25 times in all. Overall I did not think that this earlier work for the respondent had the potential to damage hearing because there was not enough noise exposure to do so”;
(b)    the respondent accepts the audiogram obtained by the MA;
(c)    the total binaural hearing impairment derived from the audiogram was 71.2%, however the MA was of the opinion the audiogram was not consistent with all the deafness being occupational/industrial deafness (see page 3 of the MAC);
(d)    the MA provided a diagnosis of bilateral sensorineural deafness partly due to occupational deafness and partly due to another cause or causes, probably at least partly constitutional (see page 3 of the MAC);
(e)    the MA did not include loss at 2000 Hz in his assessment of permanent impairment due to occupation hearing loss. He explained his opinion at pages 4 and 5 of the MAC;
(f)    the appellant submitted that the MA erred by not including loss at 2000 Hz in his assessment, in circumstances where both Professor Fagan (qualified by the appellant) and Dr Tamhane (qualified by the respondent) accepted the loss at this frequency to be due to occupational noise exposure;
(g)    in line with paragraph 1.6a of the Guidelines the task of the MA was to assess the appellant as he presented on the day of assessment and to apply his own clinical judgements in the application of the Guidelines. The MA was not bound to agree with the findings of Professor Fagan and Dr Tamhane as a minimum starting point for his own assessment (Nikolovski v McDonalds Australia Limited [2021] NSWPICMP 192 at [20]);
(h)    a simple difference of opinion on the subject about which reasonable minds may differ will be insufficient to establish error by the MA in the statutory sense (Ferguson v State of New South Wales [2017] NSWSC 887 at [24]);
(i)    the MA provided sufficient details of his actual path of reasoning in excluding loss at 2000 Hz (Wingfoot Australia Partners Pty Ltd v Kovak (2013) CLR 480);
(j)    in Richardson v Hydro Aluminium Kurri Kurri Pty Ltd [2013] NSWWCCMA 7 (Richardson), the Medical Appeal Panel stated at [20]:
“The decision concerning whether lower frequency losses should be included in an assessment of noise induced loss is a matter for clinical judgment. Relevant to that judgment is the extent and duration of noise exposure. This means considering both the intensity and volume of noise to which the worker is exposed and the duration of time over which that exposure occurred. It is also relevant to consider the extent of the losses in the lower frequencies in relation to the hearing losses in the higher frequencies to determine whether they are consistent with being noise induced”;
(k)    in Nguyen v Hycast Metals Pty Limited [2021] NSWPICMP 18 (Nguyen), the Medical Appeal Panel stated at [27]:
“The fact that the MA’s approach differs from that of both other experts does not mean he has erred. The MA is required to approach his assessment on an independent basis. The MA clearly explains why his opinion differs. His reasons are not insufficient. The Panel notes that in this matter, considering the nature and duration of the appellant’s occupational noise exposure and the nature and extent of all the hearing losses at 0.5 – 4 kHz, it was open to the MA to find that the losses at 2000 Hz are incompatible with noise induced hearing loss … Thus in industrial deafness the hearing loss at 2000 Hz would be expected to be significantly less severe than the losses at 3000 Hz and 4000 Hz, and this is not the case in the MA’s audiogram, or in the other prior audiograms dating back to 2014 at which time he had 25 years of occupational noise exposure”;
(l)    in line with Richardson and Nguyen, it was open to the MA, in exercising his clinical judgement, to find that loss at 2000 Hz was not attributable to occupational hearing loss, based on the extent of noise exposure and duration of noise exposure described by the appellant at the time of his assessment as well as the extent of the losses in the lower frequencies identified in the audiogram;
(m)     the MA noted that both Dr Fagan and Dr Tamhane had made different frequency apportionments and added the following (see page 5 of the MAC):
“I have given my reasons for my differing apportionment and in particular point out that I believe that the other two doctors have tone and employment history is which differ significantly from mine. I prefer my employment history because of the detail that I obtained is two the amount of hearing loss particularly in the earlier part of the employment with the respondent”;
(n)    the appellant submitted that contrary to the MA’s statement above, the employment history taken by Dr Tamhane was very similar to that taken by the MA. However, while similar sources of occupational noise were recorded by both the MA and Dr Tamhane, the history obtained by the MA was more detailed than that obtained by Dr Tamhane. The history obtained by the MA included the number of hours the appellant was actually exposed to the alleged occupational noise sources in the course of his employment. Conversely, Dr Tamhane only obtained a history of the number of years the appellant was engaged in each relevant role;
(o)    it was open to the MA to exclude loss at 2000 Hz from his assessment of permanent impairment due to occupational hearing loss, based on the findings of the audiogram and the history reported to him by the applicant;
(p)    the MA’s findings on this issue did not contain a demonstrable error;
(q)    the appeal should be dismissed and the MAC of the MA should be confirmed, and
(r)    in the event that the appeal proceeds to a MAP, a re-examination of the appellant is not necessary and the Appeal could be considered on the basis of the written application and notice of opposition.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the Delegate has determined that he is satisfied that a ground of appeal under s 327(3)(c) and s 327(3) (d) is capable of being made out.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel was satisfied that the MA carried out a comprehensive and careful examination of the appellant, obtained a reliable audiogram and an accurate and detailed history of his employment dating back many years, as well as a detailed and accurate history of the injury and onset of symptoms and subsequent related events and treatment.

Assessment of the hearing loss

Under “Work history including previous work history if relevant” on p 2 of the MAC the MA wrote:
“The worker was employed by the respondent as described in his statement which I went over with him. He spent about 4 1/2 years in his last position as an industrial arts teacher when he taught metal work and woodwork and was exposed to noise as described in the statement. There was noise from machinery, grinders, saws, welding, lathes, hammering, metal stamping plus other power tools and general noise from the classes. In the presence of noise he would have to raise his voice for someone with normal hearing to understand him at a distance of about 1 metre which suggests that over an eight hour working day the noise had the potential to damage hearing. He worked eight hours a day five days a week.
Prior to that he was an agriculture science teacher at schools as described, mainly at Hurlstone Agricultural High School. He said for about three months per year he would be exposed to the noise of the tractor (engine and exhaust) four six or eight hours a week and to a great deal of noise in the piggery for about two hours a week. During some science experiments there were occasional explosions but this was only twice a year. He also supervised school social events and dances where there would be a great deal of noise for about three hours each event. These social events would have occurred about 25 times in all. Overall I did not think that this earlier work for the respondent had the potential to damage hearing because there was not enough noise exposure to do so.
All of the above work was in NSW.
Prior to that he worked as a swab steward with race horses which did not expose him to loud noise. He came to Australia from his native New Zealand in 1992 and was a teacher back there. He said that there was no noise exposure teaching in New Zealand.”

Under Summary on page 3 of the MAC, the MA wrote:
“● summary of injuries and diagnoses:
Bilateral sensori-neural deafness partly due to occupational deafness and partly due to another cause or causes probably at least partly constitutional.
·consistency of presentation
The history and examination are consistent with a diagnosis of industrial deafness but the audiogram is not consistent with all of the deafness being industrial deafness (an accurate audiogram was easily obtained).”
Under “reasons for assessment” the MA noted:
“There is 5% whole person impairment.
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 noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because there is generally excessive hearing loss (occupational noise exposure is usually not greater than 60 dB even in the high frequencies) and in particular the lower frequencies are not preserved at all whereas it occupational hearing loss they are except in cases of extreme and prolonged occupational noise exposure. That is not the case here. The last period of employment as an industrial arts teacher certainly exposed him to significant noise. However the previous employment as an agricultural science teacher does not seem to have done so with only small amounts of time during which he was exposed to loud noise as I have detailed in the history. In view of the foregoing, especially in view of the comparatively small exposure to occupational noise, I have apportioned the occupational hearing loss to the frequencies first affected by loud noise - 3000 and 4000 cps. Another reason for doing this is that there is almost no difference between the involvement of the frequency 2000 cps and the frequency 3000 cps whereas in occupational hearing loss there should be considerably less involvement of 2000 cps than 3000 cps so the hearing loss below 2000 cps is inconsistent with occupational noise induced hearing loss.
This apportionment gives 18.2% BHI before mandatory deduction for presbycusis and 9.2% after such adjustment.
I do not believe that the tinnitus is severe and so have made no allowance for it.
The above give a resultant total BHI of 9.2% which equals 5% whole person impairment”.
At 10 c of the MAC the MA commented on the other medical opinions and findings and wrote:
“Both Professor Fagan and Dr Tamhane have made different frequency apportionments to what I have. I have given my reasons for my differing apportionment and in particular point out that I believe that the other two doctors have tone and employment history is (sic) which differ significantly from mine. I prefer my employment history because of the detail that I obtained is two [sic] the amount of hearing loss particularly in the earlier part of the employment with the respondents.”

Exclusion of 2000 Hz from the assessment

The appellant submitted that the MA made a demonstrable error by not including the loss at 2000 Hz in his assessment as the appellant had been exposed to a sufficient occupational noise for the loss at 2000 Hz to also have been affected.
The appellant also submitted that the statement by the MA at 10.c of the MAC where he said “I have given my reasons for my differing apportionment and in particular point out that I believe that the other two doctors have tone and employment history is (sic) which differ significantly from mine” was not correct and was therefore a demonstrable error.
The Appeal Panel reviewed the evidence in this matter.
The appellant in his statement dated 3 February 2022 wrote:
“4.     My last job was with the Department of Education where I was employed as an Industrial Arts Teacher, Agriculture Teacher and Agriculture Science Teacher from about 1995 until 30/06/2019.
5.     I was an Industrial Arts Teacher for Campbelltown Performing Arts High School for about 4 years and 4 months. I was exposed to noise from machinery, grinders, saws, welders, lathes, power tools, hammers, mallets, metal stamping and general noise from wood and metalwork classes.
6.     I was an Agriculture Science teacher for about 2 years and 8 months with Leumeah High School and an Agriculture Teacher for about 12 years with Hurlstone Agriculture High School. I was exposed to noise from the tractor (engine and exhaust), the animals in the piggery, playground supervisor and during some science experiments. I was also required to supervise school socials and dances plus event practice.
7.     When exposed to noise it was loud to the point where I was not able to communicate with someone 1 metre away from me in a normal tone of voice, I had to shout in order to communicate.
8.     I was employed full-time, working 5 days a week, 8 hours a day. The amount of noise I was exposed to varied depending on what and where I was teaching. Some days there was no noise (eg when teaching a science class), other days I was exposed to noise for most of the day (e.g. in woodwork and metalwork classes).
9.     Prior to this I was employed with the Australian Jockey Club as a swab steward from about 1995 until about 1996. I was not exposed to loud noise in this job.
10.    Prior to this I was employed with South East Racing Association (SERA) as a swab steward from about 1993 until about 1995. I was not exposed to loud noise in this job.
11.    Prior to this I was unemployed from about 1992 until about 1993.
12.    Prior to this I was employed by various high schools in New Zealand as a teacher from about 1960 until about 1992. This was a different teaching program with minimal noise”.
Professor Paul Fagan, in a report dated 24 February 2021, noted that the appellant had been employed by the respondent from 1995 to 30 June 2019 as a High School Arts teacher and was exposed to noise from wood and metal work classes coming from machines, grinders, saws, welders and general worksite noise. He noted that the appellant worked five days a week and eight hours a day and was exposed to noise for eight hours a day.
Professor Fagan wrote:
“Having considered all of the evidence including the lengthy period of exposure and the configuration of the audiogram, then in my view the Applicant’s hearing loss from 1500 Hz to 4000 Hz is due to noise exposure at work. There is no other explanation identified to account for this loss apart from noise exposure”.
Dr Tamhane, in his report dated 24 September 2021, reported that the appellant commenced employment as an Industrial Arts Teacher with the Department of Education in about 1994. Dr Tamhane noted that the appellant recalled his employment with the Department of Education as working 4 1/3 years at Campbeltown Performing Arts High School as an Industrial Arts Teacher, 2 2/3 years at Leumeah High School as an Agriculture Science Teacher and 12 years Hurlstone Agriculture High School as an Agriculture Teacher. He reported that during his employment as an Industrial Arts Teacher, the appellant was exposed to very loud noise generated by various Woodwork and Metalwork machinery.
Dr Tamhane wrote:
“While working in the Woodwork classroom, he was exposed to loud noise from power and hand tools, lathes, saws as well as impact noise from hammering and mallet work. ln the Metalwork classroom he was exposed to metal grinders, welding equipment and impact noise from metal stamping and hammering on steel with many machines in operation and tools being used at the same time.
Working as an Agriculture/Agriculture Science Teacher he was exposed to noise created by science experiments including dry ice ‘bombs’ and rockets. He was exposed to loud noise when working in or near the piggery where animals could become quite noisy. When driving or riding in the tractor as an Instructor, he was exposed to the noise created by the Tractor engine and exhaust.
Mr McCord was also involved in supervision of fundraising social events. The music and/or bands during these events was extremely noisy and it was not possible to converse with a college even with raised voices”.
In relation to the exclusion of losses at 2000 Hz, the Appeal Panel noted that the MA provided clear reasons as to why he excluded the loss at 2000 Hz from his assessment. The MA did not consider that the appellant had been exposed to a sufficient occupational noise for the loss at 2000 Hz to have been affected.
The Appeal Panel noted that the MA’s history of noise exposure during the period of employment by the respondent was far more detailed than that provided by Professor Fagan or by Dr Tamhane. Dr Tamhane did not refer to the hours worked in noise exposure. The Appeal Panel noted that the appellant did not dispute the hours recorded by the MA in relation to noise exposure in the workplace.
The audiogram obtained by Professor Fagan and attached to his report of 24 February 2021 showed that the hearing loss at 2000 Hz in the right ear (70 dB) was worse than the loss at 3Hz in the right ear (65dB). Such a result means that the loss at 2000 Hz in the right ear is inconsistent with the loss being due to noise exposure. In left ear hearing loss at 2000 Hz (75 dB) was the same as the loss at 3000 Hz (75 dB) and again this was inconsistent with hearing loss being due to noise exposure.
The audiogram obtained by Dr Tamhane dated 17 November 2021 showed that hearing losses at 2000 Hz in each ear are equal to the hearing losses in each ear at 3000 Hz. This pattern of losses is not consistent with the losses at 2000 Hz being due to noise exposure.
The audiogram obtained by the MA dated 28 April 2022 was slightly different to the audiograms obtained by Professor Fagan and Dr Tamhane in that the losses at 2000 Hz were slightly better than the losses at 3000 Hz. When the work history obtained by the MA is also taken into account, the Appeal Panel agreed with the MA that only losses at 3000 Hz and 4000 Hz are related to noise exposure as there was clearly insufficient exposure to noise at work for the loss at the lower frequencies, including 2000 Hz, to have been caused by exposure to noise at work.
The Appeal Panel concluded that the MA, after considering the history he obtained from the appellant, was correct in excluding 2000 Hz from the assessment. Further, in industrial deafness the hearing loss at 2000 Hz would be expected to be significantly less severe than the losses at 3000 Hz and 4000 Hz, and this is not the case in this matter as shown in the MA’s audiogram and the audiograms obtained by Professor Fagan and Dr Tamhane. The Appeal Panel agreed with the MA that the losses at 2000 Hz were not related to noise exposure at work.
In relation to the submission that the MA erred in stating that he believed the “other two doctors have tone and employment history is [sic] which differ significantly from mine”, the Appeal Panel were of the view that the employment histories obtained by Dr Tamhane and Professor Fagan did differ significantly from the history obtained by the MA. Neither
Dr Tamhane nor Professor Fagan obtained histories that included the hours of exposure to noise at work and both appeared to assume that the appellant was exposed to significant noise levels all day when working as an Agriculture Teacher.
In relation to the statement by the MA that the other two doctors had obtained tone histories which “differ significantly from mine”, the Appeal Panel accepted that the MA, Professor Fagan and Dr Tamhane all obtained a threshold of 75dB in the left ear and there was a difference in the right ear of 5dB between the threshold recorded by the MA and that recorded by Professor Fagan and Dr Tamhane. While the appellant stated that such a difference was negligible, this was a matter for clinical judgment. In any event, even if the difference in tone was insignificant, this would make no difference to the outcome as the employment history of noise exposure and the audiograms referred to above clearly established that the appellant’s exposure to noise at work was incompatible with noise induced hearing loss at affecting 2000 Hz.
In conclusion the Appeal Panel considered that there was no demonstrable error in the MAC and it was open to the MA, in exercising his clinical judgement, to find that loss at 2000 Hz was not attributable to occupational hearing loss, based on the extent of noise exposure and duration of noise exposure described by the appellant at the time of his assessment as well as the extent of the losses in the various frequencies identified in the audiograms.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 May 2022 by the MA should be confirmed.

[2022] NSWPICMP 325

15 August 2022