Miller v Tom Condon Stone Masonry
[2023] NSWPICMP 578
•11 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Miller v Tom Condon Stone Masonry [2023] NSWPICMP 578 |
| APPELLANT: | Hayden Leonard Miller |
| RESPONDENT: | Tom Condon Stone Masonry |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Brian Williams |
| MEDICAL ASSESSOR: | Joseph Scoppa |
| DATE OF DECISION: | 11 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against hearing loss assessment of 8% whole person impairment; whether Medical Assessor (MA) able to make a deduction for exposure to dangerous noise after the deemed date pleaded; Held – injury date on referral incompatible with MA’s findings of fact; referral injury date appeared to be a typographical error; Medical Assessment Certificate revoked to correct date of injury given in the table 4 certificate; MA correct to make deduction for noise exposure after the deemed date; Schofield v Abigroup Ltd considered and applied; challenges to frequencies used and to tinnitus assessment open to MA. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 May 2023 Hayden Leonard Miller, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 May 2023.
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 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 31 May 2023 the President’s delegate referred this matter for a WPI assessment of hearing loss caused by injury on a deemed date of 15 December 2003.
Mr Miller was engaged in noisy employment whilst employed by Tom Condon Stone Masonry (the respondent) either between 2001 and 2003, or 2003 and 2005, as will be discussed below. He has been self-employed since then and is still working as a landscaper. He moved to Victoria in 2019. He has noticed difficulty in hearing and ringing in his ears (tinnitus) for between 15 and 20 years. He has worn hearing aids for about 12 months which was of assistance to his hearing, but not perfect.
When assessed on 27 April 2023, Mr Miller had trouble hearing people including family friends and other persons. Both ears were affected and in group conversations and background noise his hearing loss was more evident. He stopped watching television because he cannot understand speech on it.
His tinnitus is constant but he has adjusted to it and it does not affect his sleep.
The Medical Assessor assessed a total binaural hearing impairment of 53.3% from which he deducted 35.4% on account of pre-existing non-related noise and a further 3.3% for the regulated presbycusis correction leaving an entitlement of 14.6% binaural hearing impairment which converted to 8% 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 Procedural Direction PIC7.
Mr Miller did not seek to be re-examined by a Medical Assessor who is a member of the Appeal Panel. There was no challenge to the hearing impairment obtained and the issue for determination was whether the deduction made was erroneous. The Panel would not have been assisted by a re-examination, as the relevant evidence was before us.
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 MAC
The history recorded by the Medical Assessor was:[1]
“During his time with the respondent the worker was exposed to loud noise with the potential to damage hearing. He has had difficulty hearing and ringing in the ears (tinnitus) for about 15 or 20 years. Treatment has consisted of the wearing of hearing aids.”
[1] Appeal papers page 24.
The Medical Assessor noted:[2]
“[Mr Miller’s] tinnitus is a constant ringing but he has become used to it and it does not affect sleep hence I do not consider it is severe. I note that this is contrary to the worker's statement but it is the history that I obtained. I have therefore relied upon it.”
[2] Appeal papers page 24.
The Medical Assessor also took a consistent history of Mr Miller’s exposure to noisy employment throughout his working life. The Medical Assessor noted that Mr Miller worked for the respondent until 2005, and not the deemed dated of injury of “15 December 2003 - deemed.”
He noted that between 1999 and 2003 no hearing protection was provided and Mr Miller was working eight hours a day, five days a week.
As to Mr Miller’s subsequent work whilst self-employed, the Medical Assessor found that the work he was doing had the potential to damage hearing because he was using whipper snippers, mowers, blowers, edges, chainsaws, mulchers, power tools and hedge trimmers. He was still doing that work, the Medical Assessor noted, but Mr Miller said he would be stopping soon and retire. He was wearing effective hearing protection in the form of both ear muffs and ear plugs whilst self employed.
The Medical Assessor noted the results of the audiometry at 53.3% binaural hearing impairment. He noted that not all of Mr Miller’s deafness was industrial deafness.
In his summary at [7] the Medical Assessor said:[3]
“• 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).”
[3] Appeal papers page 25.
At [9] the medical assessor said:[4]
“The worker’s employment with the Respondent has been determined to have the tendencies, incidents and characteristics such as to pose a real risk of damaging hearing. I am in agreement with this. In view of this despite the stated date of injury being 2003, I have included the time with the respondent as his employment during that time had the tendencies, incidents and characteristics such as to pose a real risk of damaging hearing and I believe that it did damage it - he wore no hearing protection until [Mr Miller] had left the respondent. During his subsequent self employment, he wore significant hearing protection (both earmuffs and earplugs) which I believe would have prevented him suffering hearing damage from the subsequent noise exposure. I have therefore not taken this subsequent employment into account in my assessment or, for that matter his noise exposure in Victoria.”
[4] Appeal papers page 25.
At [10a] the Medical Assessor said:[5]
“As stated above the history and examination are consistent with a diagnosis of early noise induced occupational hearing loss (he had only 6 years of noise exposure when he finished with the respondent) but the audiogram is not consistent with solely that diagnosis. This is because although the profile of the audiogram is reasonably consistent with the diagnosis, all frequencies are affected more than one would expect especially after only 6 years of noise exposure. After 6 years of noise exposure one would expect only the frequencies affected by the earliest damage to be involved, that is 3000 cps and 4000 cps. I have therefore apportioned the noise induced occupational hearing loss to these frequencies which gives 17.9% BHI before mandatory deduction for presbycusis and 14.6% after such deduction. He does not suffer from severe tinnitus so no allowance for it is appropriate.”
[5] Appeal papers page 26.
In commenting briefly on the opinions of other medical experts at [10c] the Medical Assessor noted that both experts – Professor Fagan and Dr Raj, had made an allowance of 2% for severe tinnitus. He said “I have given my reasons for not making such an allowance.”
The Medical Assessor noted further that Professor Fagan has apportioned occupational hearing loss to the 1500 cps frequency and Dr Raj to 2000 cps frequency, but again the Medical Assessor said:
“I have given my reasons for my differing apportionment in this regard.
Neither Doctor appears to have questioned whether the whole period of self employment damaged hearing or is compensable and thus appear to have concluded that there has been much more noise exposure to take into account than I have concluded ”
At [11] a templated question appears asking the Medical Assessor to consider the question of a deduction for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality. The Medical Assessor noted that Mr Miller suffered from “non-related hearing loss” and, referring to what he had said at [10a], assessed that 35.4% of the binaural hearing impairment should be deducted on account of the non-related hearing loss.
Appellant’s submissions
The appellant submitted that the Medical Assessor made three demonstrable errors:
(a) concluding that Mr Miller had only had six years of noise exposure;
(b) concluding that Mr Miller did not suffer noise induced hearing loss from 2005 to the present because he wore effective hearing protection, and
(c) failing to include the losses of the lower frequencies.
It was also submitted that the Medical Assessor had erred in not applying a tinnitus loading.
The Medical Assessor had made an error of fact, it was submitted, in finding Mr Miller had only relevantly been exposed to noisy employment for six years. The Medical Assessor himself had confirmed Mr Miller’s statement that there had been 24 years of exposure to loud noise. That history was set out in a table which we reproduce:[6]
[6] Appeal papers page 10.
Period
Employment
Noise Exposure
2005-present
(5 days p/w, 8 hrs p/d)
Self-employment as a landscaper (NSW until 2019, and thereafter VIC)
Whipper snippers, push mowers, blowers, edgers, chainsaws, mulchers, power tools and hedge trimmers
2003 to 2005
(5 days p/w, 8 hrs p/d)
Tom Condon Stone Masonry as a stone mason
Brick saws, jackhammers, mixers, circulars saws, machinery, noise in confined spaces, construction site noises
1999 to 2003
(5 days p/w, 8 hrs p/d)
Bush Pavilion Homes as a labourer
Jackhammers, saws, compressors, power tools, air tools, construction site noise.
Mr Miller noted that, whilst the Medical Assessor had assessed hearing loss found on his audiogram at 3000 and 4000 Hz, based on the history that Mr Miller had only been exposed to noisy employment for six years with the respondent, he had fallen into error by failing to consider the entire history of 24 years exposure, and had further failed to take into account the lower frequencies at 1500 and/or 2000 Hz.
Mr Miller submitted that there was no evidence before the Medical Assessor to support his finding that the hearing protection Mr Miller wore when he was self employed had prevented hearing injury. It was submitted that there was no serial audiometry to support such a finding as a matter of fact. We were referred at [15] of the submissions to a 2017 academic paper that found hearing protection frequently had little impact on the degree of noise induced hearing loss.
The Medical Assessor’s opinion could be contrasted with those of the other experts that were before him, Mr Miller said, referring to reports by Dr Paul Fagan of 21 July 2021 and Dr Thandavan Raj of 3 December 2021. Dr Fagan had found that for 22 years of noise exposure the lower frequencies below 2000Hz had been affected, noting that the examples within the Guides were consistent with his approach.
Dr Raj had also taken into account 20 years equivalent exposure, and assessed the frequencies at 2000-4000Hz. (We note in passing that Mr Miler did not refer to Dr Raj’s disallowing Mr Miller’s subsequent exposure to noise.)
As to Mr Miller’s claim for tinnitus, it was submitted that the Medical Assessor acknowledged that Mr Miller had been experiencing tinnitus for 15-20 years but had erred in finding it not to be severe because the condition did not affect Mr Miller’s sleep. There was no criteria that reflected that decision in the Guides, Mr Miller argued. His statement demonstrated other consequences of his tinnitus, he said, and the relevant paragraph was cited.
It was also submitted that both Dr Fagan and Dr Raj also provided loadings of 2% binaural hearing impairment for severe tinnitus. We were referred to Dr Raj’s opinion in that regard.
Respondent
The respondent submitted that the deemed date of injury was agreed between the parties as being 5 December 2003, which was the date the respondent said that Mr Miller ceased employment with it. It also submitted that the payment summary confirmed that date, and purported to enclose the summary, but enquiries revealed it had not been lodged. Moreover, the respondent said that the above date was “clearly evidenced in [Mr Miller’s] taxation records.” [We note the 2003 was the year that Mr Miller alleged he commenced with the respondent in his statement, but that Dr Raj took a history that Mr Miller ceased work after one year’s employment with the respondent in 2003, and of course that the ARD pleaded that the date of injury was 5 December 2003. On the other hand, Dr Fagan took a history that Mr Miller worked for the respondent between 2003 and 2005. This inconsistency is unfortunate but does not affect the relevant issue that has arisen.]
The respondent firstly conceded that the Medical Assessor fell into error in concluding that Mr Miller did not suffer hearing loss after 2005 because he wore hearing protection. We were referred to A & G Engineering Pty Ltd v Civitarese[7] in that regard, and find the concession properly made.
[7] (1996) 41 NSWLR 41; (1996) 14 NSWCCR 158.
The respondent, however, did not concede that this error vitiated the assessment, as we understood it. It argued that the Medical Assessor was correct to exclude from his calculation the hearing loss attributable to Mr Miller’s exposure after 2005. (We note from that submission, that the respondent appeared to accept the Medical Assessor’s finding that, against the evidence it would seem, Mr Miller in fact continued to work until 2005 for the respondent.)
The Medical Assessor was also “at liberty” to exclude from his calculations the frequencies below 3000 Hz. In that regard we were referred to Mills v Canopus Corporation Australia Pty Ltd,[8] an earlier Medical Appeal Panel decision. The respondent submitted that on the authority of Mills the subsequent period of self-employment was properly excluded by the Medical Assessor.
[8] (NSW) PICMP 2023.
It was submitted that it was open to the Medical Assessor to exclude the frequencies below 3000 Hz as each case has to be decided on its own facts. We were referred in that regard to Manusu v Speed Flow Products Pty Ltd[9] and Qantas Airways Limited v Mammoliti.[10]
[9] [2017] NSW WCCMA 61.
[10] [2009] NSW WCCMA 158.
As to the tinnitus loading, the Medical Assessor’s reasons for making a deduction that was contrary to the medical experts before him was open to him on the facts, the respondent argued. He gave an adequate explanation for so differing. It was submitted that this was a matter for his clinical judgment, as the Guidelines did not define what constitutes severe tinnitus. We were referred to chapter 9.11 of the Guides in that respect.
The respondent submitted that the MAC should be confirmed, and alternatively that a re-examination should take place regarding the appropriate frequencies.
DISCUSSION
We note the history taken by the Medical Assessor in which he declined to follow the terms of the referral, which he noted at [1] gave a date of injury as 5 December 2003. It is now settled law that the terms of the referral are binding on the Medical Assessor to whom a matter is referred.[11] Accordingly the Medical Assessor has fallen into error in accepting the history he obtained from Mr Miller during the consultation of his not ceasing work for the respondent until 2005.
[11] Skates v Hill Industries Ltd [2021] NSWCA 142.
We note that there was some controversy in the evidence regarding the date, as Mr Miller in his statement of 7 February 2023 asserted that he was employed by the respondent from 2003 until 2005.[12] This history was also taken by Mr Miller’s medico-legal expert, Dr Paul Fagan on 21 July 2021.[13] However, Dr Thandervan Raj, the respondent’s medical-legal expert, recorded that Mr Miller worked from about 2000 to 2003 in his report dated 21 July 2021.[14]
[12] Appeal papers page 39.
[13] Appeal papers page 41.
[14] Appeal papers page 66.
The respondent submitted that it had relied on a payment summary of Mr Miller’s employment with the respondent, and Mr Miller’s tax returns to establish that the date of injury was 5 December 2003 (deemed). The respondent purported to have enclosed the payment summary, but it was not before us, and neither on enquiry was it with the Personal Injury Commission Registry.
Whilst that material was not before us, the respondent submitted that it was agreed between the parties – and was indeed the date pleaded in the Application to Resolve a Dispute – that the date of injury was 5 December 2003 (deemed).
The referral, however, nominated the date of injury as “15 December 2003 – deemed.” This error, which would seem to be a typographical error, was not picked up by either party when the draft referral was served as a matter of practice by the Personal Injury Commission. It is yet another example of “inexplicable” oversight by the legal practitioners involved.[15] In any event. The Medical Assessor failed to correctly record the date of injury referred to him, as he stated at [1] of his MAC that the date of injury was “5 December 2003.” The Medical Assessor thus:
· failed to note that the referred date was “15 December 2003”;
· failed to note that it was a deemed date;
· notwithstanding, cited the date “5 December 2003” in his Table 4 certificate,[16] and
· in any event accepted a different date of injury in his consultation with Mr Miller.
[15] See Basten JA in Skates at [36].
[16] Appeal papers page 29.
Accordingly, the MAC will have to be revoked to correct these errors. On the authority of State of NSW v Page[17] an option for the Panel would have been to refer the matter back to the Delegate so that Mr Miller could be re-assessed in accordance with the terms of the referral as would then hopefully be accurately agreed by the parties.
[17] [2023] NSWSC 935.
However, assuming that the respondent is correct in its submission, the error in the referral is of only 10 days, which is of no consequence in the circumstances of this case. The wider question of whether Mr Miller was employed by the respondent from about 2000 to 2003 or between 2002 to 2005 is also no impediment to our deciding the principal issue herein.
In the final analysis, the appellant must fail. The argument presented by Mr Miller was rejected by another Medical Appeal Panel in Mills, which in turn found it was bound by a decision of Fullerton J in the Supreme Court.
In Mills, the claimant was employed by the respondent between 2001 and 2002. Thereafter he became self employed where he continued to be exposed to hazardous noise. The claimant sought compensation for his assessed loss of 14% WPI which was disputed, and eventually a MAC was issued. The Medical Assessor found that Mr Mills’ impairment translated to 13% WPI. However, he found that the noise exposure after the date of injury of 1 January 2002 should be excluded, and certified an entitlement of 7% WPI.
The claimant appealed to the Medical Appeal Panel, which found that, with one reservation which is not here relevant, that the Medical Assessor had been correct. The Panel referred to the opposing argument, which relied on the proposition that the injury to Mr Mills’ hearing had substantially contributed to his later increased deafness by further exposure to noise, citing Murphy v Allity ManagementServices Pty Ltd,[18] as authority for that proposition.
[18] [2015] NSWWCCPD 49.
The Appeal Panel also noted a decision by another Medical Appeal Panel, Curran v Linfox Armaguard Pty Ltd,[19] which upheld a similar argument advanced by the appellant in the present case.
[19] [2021] NSWPICMP 76.
The Appeal Panel in Mills rejected the appellant’s argument. It referred to Schofield v Abigroup Ltd[20] and declined to consider the argument in Curran, observing that it was not bound by another Medical Appeal Panel decision, but was by the Supreme Court in Schofield.
[20] [2016] NSWSC 954.
We concur. In Schofield, Fullerton J considered the same argument as was presented before us. In her penultimate paragraph she said:
“33. I regard the construction of s 319(c) of the 1998 Act as it applies in the context of the operation of s 17 of the 1987 Act for which the first defendant contends as the correct construction. That is, that as the plaintiff’s last employer in New South Wales at the date of the Notice of Injury, the first defendant was liable under s 17(1)(c)(ii) for the injury to the plaintiff’s hearing that had occurred ‘in one blow’ as at the deemed date of injury by a gradual process predating that date. Accordingly, in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.”
It follows that Mr Miller is only entitled to compensation to the deemed date of injury, which the parties appear to have agreed was 5 December 2003, but was mistakenly referred as “15 December 2003 – deemed.” The MAC will be revoked to reflect that error, as we discussed above.
However, for the above reasons the Medical Assessor was correct to assess WPI as at the deemed dated of injury. He was required to make an appropriate adjustment for the subsequent condition of occupational noise induced hearing loss caused by his activities as a self-employed landscaper, including when he later left the jurisdiction.
As to the submissions challenging the Medical Assessors decision to only rely on the higher frequencies, we find that on the balance of probability we concur with the Medical Assessor’s reasoning that the audiogram he took showed that all frequencies were affected more than one would reasonably expect after only six years of noise exposure and that the losses at 3 and 4 kHz are due to the injury with the referred date on injury.
We note the submissions regarding Mr Miller’s tinnitus. We find the Medical Assessor’s assessment was open to him. He is not obliged to adopt other specialists’ opinions, and his reasons were adequate to explain his assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1541/23 |
Appellant: | Hayden Leonard Miller |
Respondent: | Tom Condon Stone Masonry |
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 Medical Assessor Henley Harrison 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:
Injurydeemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI | ||
15 December 2003 - deemed | 500 | 40 30 | 6.4 | 35 30 | 4.5 | 8.1 | 0 |
| 1000 | 50 40 | 12.1 | 45 35 | 10.2 | 10.5 | 0 | |
| 1500 | 55 50 | 11.2 | 55 50 | 11.2 | 11.2 | 0 | |
| 2000 | 55 55 | 8.4 | 65 55 | 10.5 | 8.6 | 0 | |
| 3000 | 75 ≥60 | 8.4 | 75 ≥60 | 8.4 | 8.4 | 8.4 | |
| 4000 | 85 ≥60 | 9.5 | 90 ≥60 | 9.8 | 9.5 | 9.5 | |
| 56.0 | 54.6 | 17.9 | |||||
TOTAL % BHI: 53.3 | |||||||
| Less Pre-existing non-related loss: 35.4 | |||||||
Less Presbyacusis correction: 3.3 | |||||||
Add % of severe tinnitus: 0 | |||||||
Adjusted total % BHI: 14.6
Resultant total BHI of 14.6% = 8 % whole person impairment.
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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