McNaughton v Engineering & Business Services (NSW) Pty Ltd - [2021] NSWPICMP 159

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, 4^th ed 1 April 2016 and re-issued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPICMP 159
Decision Date: 2 September 2021

CaseChat Overview and Summary

In the matter of McNaughton versus Engineering & Business Services (NSW) Pty Ltd, the court was called upon to review a workers compensation matter. The applicant, McNaughton, sought to challenge the determination of a 9% Workers Compensation Injury (WPI) for a loss of hearing, attributing it to his constant exposure to noise in his role as a machinist over a period of 53 years. The dispute reached the court after McNaughton, born in 1940, argued that his binaural hearing loss, particularly at a low tone frequency of 0.5kHz, was a result of his prolonged noisy employment.

The legal issues before the court involved determining the adequacy of the reasons provided for the 9% WPI assessment and whether the evidence presented was consistent with the degree of noise exposure McNaughton endured. Specifically, the court had to consider if the evidence supported the conclusion that McNaughton's hearing loss was attributable to his employment and whether the assessment was appropriate given the nature and duration of his exposure to noise.

The court found that the reasons provided for the 9% WPI were inadequate and did not sufficiently account for the evidence of McNaughton's intense exposure to noise over many years. The evidence suggested a significant duration of exposure consistent with his occupational history, leading the court to revoke the Medical Assessment Certificate. The court then issued a fresh certificate, awarding McNaughton an 11% WPI, reflecting a more accurate assessment of his hearing loss in relation to his employment conditions. This decision underscores the importance of thorough and adequate reasoning in workers compensation claims, particularly where occupational noise exposure is a significant factor.

Orders