McNaughton v Engineering & Business Services (NSW) Pty Ltd
[2021] NSWPICMP 159
•2 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | McNaughton v Engineering & Business Services (NSW) Pty Ltd [2021] NSWPICMP 159 |
| APPELLANT: | Earl McNaughton |
| RESPONDENT: | Engineering & Business Services (NSW) Pty Ltd |
| APPEAL PANEL: | John Wynyard Dr Brian Williams |
| Dr Joseph Scoppa | |
| DATE OF DECISION: | 2 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 9% WPI for loss of hearing by applicant born in 1940 and working constantly in noisy employment as a machinist for 53 years; whether low tone frequency of 0.5kHz binaural hearing loss; whether adequate reasons given; Held – Medical Assessment Certificate revoked; reasons inadequate and evidence consistent with intense exposure to noise for a significant duration; fresh certificate for 11% issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 May 2021 Earl McNaughton, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sylvester Valentine Fernandes, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 26 April 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 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, 4th ed 1 April 2016 and re-issued 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 7 April 2021 the matter was referred to the MA for assessment of WPI caused by loss of hearing on a deemed date of January 2008.
Mr McNaughton had been employed with Engineering & Business Services (NSW) Pty Ltd (the respondent) as a machinist. He was born in 1940 and worked in noisy employment for 53 years.
The MA certified a 9% WPI.
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 seek to be re-examined by a MA who is a member of the Appeal Panel.
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 ground of appeal was limited to the assertion that the MA made a demonstrable error when he limited his calculations to hearing loss demonstrated on his audiogram at 1kHz, thus excluding the losses found at 0.5 kHz.
The MAC
The MA took a history that Mr McNaughton had been engaged in hazardous steady-state fluctuating intermittent and impact noise throughout his employment history. The MA found that the employment had the essential incidents tendencies and characteristics consistent with the onset of noise induced hearing loss. He also found that the protection had not been supplied when Mr McNaughton was in very noisy situations.
Mr McNaughton explained in his statement[1] that he began work in 1956 as an apprentice for A Goninan & Co Ltd for five years, and was then employed by that firm for the ensuing 39 years until 2000. During that time he was exposed to noise from band saws, angle grinders, drills, hammers, metal spinners, compressors, welders, industrial machinery and general work site noise which included a blacksmith shop and machine shop.
[1] Appeal papers page 41.
In 2000 until his retirement in 2009 Mr McNaughton was employed by his own business, the respondent, as a fitter and working director. During that time he was exposed to similar noise. He worked 12 hours a day, usually 5 days per week and was exposed to noise between 4 to 8 hours per day.
The MA drew up a chart which reflected Mr McNaughton’s evidence.[2] His chart mistakenly indicated that Mr McNaughton wore no hearing protection, whereas Mr McNaughton stated that he wore ear protection whilst working for his company, the respondent.
[2] Appeal papers page 24.
The MA’s chart indicated that Mr McNaughton worked “40+” hours per week. A footnote to that entry stated:
“1 hours per week The effect of occupational noise on an individual depends on, a varying type of noise, varying frequency characteristics of noise, varying intensity of noise, varying duration of noise and individual susceptibility. To accommodate these factors and as per current available empiricism (ISO 1999: 2013 Means; NAL Tables), a 40h/w ± gauge is appropriate unless individual circumstances are strikingly different.”
(As written).The type of noise exposure was defined as “predominantly continuous and impact”, and in a further footnote, the MA explained that his chart, in indicating that the employment was noisy, meant:
“Criteria: employees within one metre of each other have to raise voice (or shout) to be heard. The criteria for noisy employment were explained to the claimant.
(Fact: At 90 dB it is possible to hear each other with voices raised and at 100 dB it is only possible to hear each other when shouting loudly. (extrapolated from Webster JC. Speech interference aspects of noise. In Noise and Audiology, ed. Lipscomb DM Baltimore: University Park Press (1978) pp 193-228; Suter A. 1986. Hearing conservation. In: Berger E, Ward W, Morrill J, Royster L (Editors).Noise and hearing conservation manual. Akron, OH: American Industrial Hygiene Association, p 7).”In giving his summary at [7], the MA said:
“1. Noise induced hearing loss in the middle and treble frequencies, and
2. An excess loss of uncertain origin (non occupational*) in the bass frequencies, and
3. Age related hearing loss
*There are many possible causes of non-occupational hearing loss. The validity of the finding of a nonoccupational contribution to a hearing loss is not conditional on the identification of the medical aetiology thereof, be that identification precise or otherwise. Nor is it necessarily clinically difficult to assess that a component or all of a hearing loss (including where it may be of uncertain medical aetiology or deafness due to an unknown cause or causes) is non-occupational. This depends on the circumstances of the particular case. Also, in hearing loss cases the deduction is not for pre-existing conditions, but it is for hearing loss not due to noisy employment. It can usually be calculated exactly and the 10% deduction used in other compensation claims is not often needed. Thus, in this case, there is no necessity to explain the cause of the low tone hearing.”
In explaining his calculations at [10] of his MAC, the MA said that the frequencies below 1 KHz had not been included. He said:
“The historical noise exposure is not ‘suitable or sufficient’ to cause a noise induced hearing loss at these frequencies because the cumulative immission levels are not high enough to involve these frequencies.”
The MA said further:
“Hence after consideration of the nature and duration (immission levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 1, 1.5, 2, 3 and 4 KHz are caused by his occupational noise exposure.”
The MA included a footnote at this juncture, which said:
“Shone v Country Energy (2007) NSW WCC MA 18 is perennially implored as authority for inclusion of the lower frequencies, in an effort to ascribe to Shone a ‘regulatory science’ status. It is important to understand that it is not possible to impart the ‘bright-line’ of certainty of law to an essentially fluid subject (that is a function of several variables) requiring a clinical judgement (See also ‘Richardson’ [2013] NSW WCC MA 56) and fundamentally requires each case to be judged on its merits.”
The MA then said:
“In making that assessment I have taken account of the following matters:
1. Type and duration of noise exposure (immission levels)
2. Type of hearing impairment
3. Mode of onset and progression
4. Shape of audiogram
5. Presence of a dip or ‘bulge’ around 4 kHz
6. Clinical picture”
In discussing the opinion of the appellant’s medico-legal specialist, Dr Paul Fagan, at [10c] the MA said, relevantly:
“2. Dr P. Fagan states on p 4 of his report, ‘…There is no explanation identified to account for this loss apart from noise exposure’. On this basis the loss is attributed to noise exposure by Dr P. Fagan. This assumes the improbability of any other causes (See below1) in the presence of negative/absent observations (i.e. ‘no explanation identified’), to provide a positive ‘noise causation’ explanation. Such a methodology does not yield a cogent reason for causation. The truth of a proposition must be judged by the evidence for that proposition and not the lack of evidence against it’.”
We were not assisted by the footnote to this entry, which addressed irrelevant issues.
A perusal of Dr Fagan’s report showed that his comment had been made in the following context:[3]
“It cannot be assumed loss at 500Hz, 1000Hz and 1500Hz are to be disallowed on the basis that lower frequencies cannot be affected by loud noise exposure. Any such assumption is inconsistent with the medical criteria set out in AMA 5 and Chapter 9 of the NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment (4th edition) April 2016. Whether lower frequencies should be taken into account when assessing occupational noise-induced hearing loss depends on the facts in each individual matter including the nature and duration of occupational noise exposure and the nature and extent of all the hearing losses including those below 2000Hz. Occupational noise exposure for 53 years is uncommon. .... …. There is no explanation identified to account for this loss apart from noise exposure. This approach is consistent with the Workers Compensation Medical Panel decision in Shone v Country Energy {EMI} NSW WCC MA18 10.8.07.”
(Emphasis added).[3] Appeal papers page 46.
SUBMISSIONS
The appellant relied on two grounds. Firstly it submitted that the MA had made a demonstrable error by failing to include the hearing loss at 0.5kHz, and secondly that he had not given adequate reasons in that regard.
The appellant submitted that an accurate history of Mr McNaughton’s exposure to industrial noise had been taken by both the MA and Dr Fagan. Mr McNaughton had been born in 1940, and over the 53 years of his working life had been exposed to loud and intense noise for at least 40 hours per week.
The appellant submitted that the MA had erred in finding that no hearing protection had been worn through those 53 years, whereas Dr Fagan, Dr Macarthur and the appellant all stated that hearing protection was worn during the last nine years of Mr McNaughton’s working life. Notwithstanding that error, it was still unchallenged that Mr McNaughton had been exposed to 44 years of intense and constant noise exposure without any hearing protection. This amount of exposure was rare, and it was “extremely injurious” to his hearing.
The appellant argued that the omission of the hearing loss found at the 0.5kHz frequency constituted a demonstrable error. The appellant submitted that the MA’s finding that the immission levels were not suitable or sufficient to cause noise induced hearing loss below the 1 kHz frequency was inconsistent with the history taken with the appellant’s noise exposure.
The second ground related to the adequacy of the MA’s reasons. We were referred to Vegan in that regard, which we have referred to above. It was alleged that the MA had failed to provide adequate reasoning as he had not explained clearly why the 53 years of noise exposure by the appellant was not “suitable or sufficient” to be reasonable for the hearing loss noted at 0.5 kHz.
We were referred to Shone v Country Energy [4] and Thomas Carney v Pacific National (NSW) Pty Ltd[5]. The appellant noted that the MA was clearly aware of Shone as he had referred to it in his MAC, but he had fallen into error because, although he had an audiogram before him from Mr McNaughton that was similar to that in Shone, and although the history of noise exposure was also similar, he had failed to explain why he differed from the Shone decision.
[4] (2007) NSWWCCMA 18 (Shone).
[5] [2021] NSWWCCMA 36 (Carney).
The appellant contended that Shone was authority for the proposition that frequencies below 2 kHz can be taken into account and indeed that there is no guideline that prohibited the low tone frequencies as low as 0.5 kHz from being considered.
The appellant kindly set out paragraphs 22-27 of Shone. The appellant compared the factual situations in Shone and Carney, and submitted the audiogram in Mr McNaughton’s case was comparable. The appellant noted that Dr Fagan had assessed his loss of hearing at the 0.5 kHz range as being industrial hearing loss. Although Dr Macarthur, the medico-legal expert retained for the respondent had not, he gave no reasons.
The respondent
The respondent relied on the explanations given by the MA to resist the submissions both that he ought to have included the hearing loss at the 0.5kHz frequency and that he did not give adequate reasons for failing to do so.
We were referred to the exposition given by the MA at [7] in the footnote to his summary which we have reproduced above
We were referred to Kevin Gordon Reid v Australian Timber Shutters Pty Ltd[6] which, it was submitted, contained striking similarities between the present case and Reid. It was submitted that the AMS (as he was then called) was the same specialist and that the Medical Appeal Panel considered the same reasons as were given in the present MAC. There were, it was submitted, “striking similarities” between the diagnoses given by the MA in each case. The Medical Appeal Panel in Reid did not find his reasoning to be inadequate, nor that he had made a demonstrable error in failing to include the low tones in his assessment, as we understood the submission. It followed, the respondent argued, that it could not be found that the MA made a demonstrable error in the current case, nor that his reasoning was inadequate.
[6] [2021] NSWWCCMA 10 (Reid).
We were also referred to another Medical Appeal Panel decision in Robert Swan v Sydney County Council.[7] The respondent reproduced excerpts from that decision that were concerned with the identification of that part of hearing loss that had been found not to be caused by exposure to industrial noise.
[7] [2016] NSWWCCMA 57 (Swan).
The respondent submitted that in the light of those authorities, it could not be argued that the MA had failed to provide adequate reasoning within the limits defined by Vegan.
The respondent submitted that the appellant’s submissions regarding Shone and Carney were not maintainable, as we understood the submission, as the MA had directly referenced Shone in his MAC.
We were also referred to Peter Thomas Richardson v Hydro Aluminium Kurri Kurri Pty Limited,[8] a further decision by a Medical Appeal Panel, as authority for the proposition that the assessment of noise induced hearing loss was a matter for clinical judgement, which required a consideration of both the intensity and duration of the noise exposure. The respondent submitted that it was “quite apparent” that the MA had done so, and moreover that he was aware of his obligations. He had demonstrated within the MAC that he was aware of what he had to consider, therefore given his “comprehensive reasoning as to the basis for” his decision to exclude the hearing loss at the 0.5 kHz frequency, he had applied his clinical judgement. There was accordingly no substance to the appellants appeal that a demonstrable error had occurred.
[8] [2013] NSWWCCMA 56 (Richardson).
Discussion
The appeal must be allowed. We are grateful for the references on both sides of the record and various decisions that support each party’s case. The diversity of outcomes demonstrates what is said in every case: that is, that each case depends on its own facts. The reference by the respondent to Reid demonstrates that the MA uses a template that is adjusted for each assessment. The reliance by the respondent on those templated reasons in this case overlooks the criticism made by the appellant that, although as generalisations they may or may not be an acceptable explanation for the methodology adopted, they have not been applied to the specific facts the MA was required to consider in Mr McNaughton’s case.
The medical specialists on the Panel concur that the audiogram taken by the MA is consistent with that of an 80 year old man who has worked for 53 years in noisy employment. This work was constant and performed in the extremely noisy environment of a metalworker’s machine shop. The intensity of the noise to which Mr McNaughton was exposed only appears to have reduced in the last nine years before his retirement, when he would not spend all his time in the machine shop. He estimated his exposure was four to eight hours per day. Before that time, for the previous 44 years, his statement did not indicate the hours of this exposure, but as an employee it would follow that he was exposed to noise of the same intensity during his work hours.
The MA sought to explain his reasons by dealing with the causes of non-occupational hearing loss. Whilst he stated that it was not necessary for him to explain the cause of Mr McNaughton’s low tone hearing loss, that did not exempt him from explaining why the loss was categorised as being non-occupational in the particular circumstances of the case he was dealing with.
Whilst the respondent is correct to argue that clinical judgement is required to assess the intensity and duration of noise exposure, each case requires an explanation where more than one conclusion is open. That explanation does not have to be extensive or detailed but as a medical professional reaching a professional judgement, the MA was aware that the circumstances he was assessing were consistent with the possibility that such a long and intense exposure to significant industrial noise had in similar circumstances been found to cause hearing loss in the low frequencies. The MA was aware because he referred to the leading authority on this aspect of hearing loss cases, Shone, in his footnote. The footnote acknowledged, after some interesting quasi-legal observations, that the question of the inclusion of the low frequencies “fundamentally requires each case to be judged on its merits.”
The MA did not discuss the merits of Mr McNaughton’s case, preferring to rely on the generalisations that are clearly part of the template that he uses in his MACs. In Reid the same templated paragraphs were used as we have reproduced in paragraph [21] above (save that in point 2 the MA included the lower middle frequencies), including the footnote. Moreover, the facts in Reid were quite different. Mr Reid had only been exposed to industrial noise between 2006 and 2019. He worked in the manufacture of timber shutters, and there was no indication of the intensity or duration of the noise itself, nor how many hours or days of the week Mr Reid was exposed.
In Shone the exposure to industrial noise had been over a period of 49 years. At [22], the Panel noted:
“Occupational noise exposure for more than 40 years is uncommon and exposures of 49 years even more so. Most studies do not address the impact of such long occupational exposures.”
The present Panel endorses that statement. It follows that an occupational noise exposure for 53 years is rare, and that alone was a significant factor that the MA failed to consider adequately in his reasons.
Further, the reasoning by the MA that the historical noise exposure was not “suitable or sufficient” to cause a noise induced hearing loss at this frequency, was not exposed. The statement that the “cumulative immission levels are not high enough to involve these frequencies” is a simply a conclusion. The facts and circumstances on which the conclusion was reached not apparent.
In Wingfoot Australia Partners Pty Ltd v Kocak[9] the Full Court stated at [55]:
“…The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law…”
[9] [2013] HCA 43.
An MA is similarly required to give adequate reasons, as the appellant submitted, in citing Jose de Nobrega v Buena Bela Floor & Wall Tiling[10].
[10] [2016] NSWWCCMA 7 at [42].
In the present case we are not satisfied that the path of reasoning was sufficiently explained to enable us to find there was no demonstrable error. We would also note that the footnote we have reproduced at [21] above, which the MA used to apply to his consideration of the history of Mr McNaughton’s exposure to noise, is incorrect. The use by the MA of the ISO 1999 standard is an error. The ISO 1999 standard only relates to a maximum 40 years exposure and is based on a survey of a population base. It is not endorsed by either the AMA 5 or the Guides, and is not applicable to Mr McNaughton’s situation, he having worked for 53 years in noisy employment.
Finally, we found the criticism by the MA of the opinion by Dr Fagan difficult to follow. Although the MA argued that the truth of the proposition had to be judged by the evidence supporting it, we have found that the MA did not consider, in terms, the evidence that supported Dr Fagan’s opinion. To the contrary, the MA’s justification we found to be somewhat obtuse, with respect, and he appears to have adopted a default position that there was no evidence to support such a finding. We have found to the contrary. When the comment criticised by the MA is seen in the context of Dr Fagan’s complete opinion it can be seen that Dr Fagan had identified the relevant evidence, and that he gave an accurate summary of the entitlement to hearing loss registered in the lower frequencies.
The MAC will therefore be revoked. We note that the audiogram completed by Dr Fagan on 7 June 2020 showed an occupational hearing impairment at 0.5kHz of 4.5% BHI, and that Dr Peter MacArthur on 16 November 2020 indicated the same impairment. The impairment found by the MA on 21 April 2021 was 3.4% BHI. No appeal was made against the finding on the audiogram, and we accordingly revoke the MAC to add to Mr McNaughton’s entitlement a further 3.4% binaural hearing loss. The resultant total BHI of 21.7% equals 11% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 April 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 after 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 Sylvester Valentine Fernandes and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - 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 Air Bone | Total % BHI | Occupational % BHI | |
| 01/01/2008 (deemed) | 500 | 35 35 | 30 30 | 3.4 | 3.4 | |
| 1000 | 40 35 | 35 35 | 6.3 | 6.3 | ||
| 1500 | 45 45 | 40 40 | 6.8 | 6.8 | ||
| 2000 | 45 45 | 45 45 | 6.1 | 6.1 | ||
| 3000 | 60 60 | 55 55 | 5.6 | 5.6 | ||
| 4000 | 60 55 | 60 55 | 6.0 | 6.0 | ||
| 34.2 | 34.2 | |||||
| TOTAL % BHI: 34.2 % | ||||||
| Less Pre-existing non-related loss (of 0.0 %): 34.2 | ||||||
| Less Presbyacusis correction(of 12.5 %): 21.7 | ||||||
| Add % of severe tinnitus (of 0.0% ): 21.7 | ||||||
| Adjusted total % BHI: 21.7 | ||||||
| Resultant total BHI of 21.7% = 11% whole person impairment (Table 9.1) | ||||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
John Wynyard
Member
Dr Brian Williams
Medical Assessor
Dr Joseph Scoppa
Medical Assessor
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