Mills v Canopus Corporation Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Mills v Canopus Corporation Australia Pty Ltd [2023] NSWPICMP 18
APPELLANT:	Anthony Mills
RESPONDENT:	Canopus Corporation Australia Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Joseph Scoppa
DATE OF DECISION:	24 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of permanent impairment from injury of hearing loss deemed to have happened on 1 January 2002; worker suffered further hearing loss due to exposure to hazardous noise after 1 January 2002 in self-employment and on his farm; whether Medical Assessor (MA) erred by adopting a “time weighted assessment” to determine what proportion of the worker’s hearing impairment was due to exposure to hazardous noise after 1 January 2002; excluding that proportion from worker’s overall hearing impairment when assessing worker’s permanent impairment from injury on 1 January 2002; Appeal Panel held that MA was correct to exclude from his assessment of worker’s permanent impairment any hearing impairment the worker suffered due to exposure to hazardous noise after 1 January 2002 but erred in using a “time weighted assessment” to determine what hearing impairment should be excluded; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 September 2022 Anthony Mills, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
15 August 2022.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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

Canopus Corporation Australia Pty Ltd, the respondent, employed the appellant as a farmer between 2001 and 2002. The respondent was the appellant’s last employer. The appellant was exposed to hazardous noise in his employment with the respondent, which is to say the nature of the appellant’s employment with the respondent was likely to cause the appellant a loss of hearing. It seems that there is agreement between the parties that the appellant’s last date of employment with the respondent, and hence the date of his injury of hearing loss, was 1 January 2002.
The appellant had also been employed prior to his employment with the respondent in employment over several decades in which he was exposed to hazardous noise. The appellant subsequent to his employment with the respondent, also worked as a self employed handyman and undertook activities on farms on which he lived in which he was exposed to hazardous noise.
Relying on a report of Dr Paul Fagan, dated 22 April 2021, who had assessed the appellant to have 14% whole person impairment (WPI) from a hearing loss due to exposure to hazardous noise, the appellant’s solicitors wrote to the respondent’s insurer on 22 July 2021 advising it that the appellant claimed compensation from it of $18,500 under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The insurer then arranged for the appellant to be examined by ear, nose and throat surgeon Dr T B Raj on 23 November 2021. In a report of 24 November 2021, Dr Raj advised the insurer that he assessed the appellant had 7% WPI due to occupational noise induced hearing loss.
The insurer thereupon wrote to the appellant on 15 December 2021 notifying him under s 78 of the 1998 Act that it disputed his claim for compensation under s 66 of the 1987 Act. It advised the appellant that its reasons for doing so was that Dr Raj had assessed his permanent impairment from industrial deafness was 7% WPI, which did not exceed the 10% threshold required under s 66(1) of the 1987 Act for the appellant to be entitled to compensation for permanent impairment.
The appellant then initiated proceedings in the Personal Injury Commission (the Commission) against the respondent seeking determination of his disputed claim for compensation under s 66 of the 1987 Act. On 4 July 2022 a delegate of the President referred to the Medical Assessor the medical dispute between the parties relating to the appellant’s degree of permanent impairment from his injury of hearing loss, with the medical dispute being described in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
 the nature and extent of hearing loss suffered by a worker (s319(e))
 the degree of permanent impairment of the worker as a result of an injury (s319(c))
 whether any proportion of permanent impairment is due to any previous injury or pre-existing
condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury :   1/01/2002
Body part/s referred:                   Hearing loss
Method of assessment:              Whole person impairment”
In response to that referral the Medical Assessor examined the appellant on 28 July 2022 and, as mentioned, issued the MAC on 15 August 2022.
At the time the Medical Assessor examined the appellant he performed audiometry in a suitable sound attenuated environment with a calibrated audiometer. The Medical Assessor noted in the MAC that the audiogram he generated from that audiometry, and which he attached to the MAC, revealed a bilateral sensorineural hearing loss maximal in the high frequencies.
At the time of his examination of the appellant, the Medical Assessor also obtained a history from the appellant of the appellant experiencing bilateral gradually progressive hearing loss from about 2005 and of the appellant experiencing tinnitus for longer than 10 years which had been getting worse in the last 10 years. The Medical Assessor noted that the appellant’s experience of tinnitus was that it sounded like cicadas and was bilateral and constant. The Medical Assessor noted the appellant’s tinnitus interfered with his sleep and interfered with his activities of daily living, as it interfered with his hearing and caused him difficulty when concentrating on speech. The Medical Assessor also obtained a history that the appellant had temporary tinnitus “in 2002 post tractor work”.
The Medical Assessor also obtained a history of the appellant’s exposure to hazardous noise. That history is at the centre of the issues the appellant has raised in his appeal against the MAC. It is appropriate therefore that the Appeal Panel repeats in full that history, which was:
“• Handyman, currently, self employed, part time for 7 years 2-3 days per week and full
time for 5 years (2017 to the present). He said in the last 5 years he worked full time
and was exposed to the noise of chain saws once a week for up to 8 hours per day,
power tools (drop saws, nail guns, impact drivers and hammer drills) 2-3 hours per day
5 days per week. He said hearing protection was worn. He said that for 7 years
before his full time work he worked part time and was exposed to similar noise 2-3
days per week. Whilst working part time as a Handyman he also worked part time as
a farm hand at Bulahdelah NSW 2-3 days per week where he was exposed to the
noise of chainsaws, tractors and power tools. He said hearing protection was worn.
• Farm Hand, self employed, 1989-2019 (30 years) at ‘Woodland’ at Coolabah, NSW,
apart from the time worked above. He said he was exposed to the noise of tractors
with air conditioning, chainsaws, shearing and power tools. He said he was in noise 4-
8 hours per day 5 days per week. He said he had to raise his voice to have a
conversation at 1 metre. He said hearing protection was worn.
• Canopus Corporation Australia Pty Ltd 2001-2002 (2 years) as a Farmer doing casual
employment doing fencing and motorbike mustering of camels. He said he was
exposed to the noise of tractors, chainsaws, power tools, motor bikes, orgers, post
borers for fencing and post drivers. He said he worked 10 hours per day 2 days per
week on average. He said no hearing protection was worn.
• Cooneybar Pastoral Company as a Casual Farm Hand, 1989-2000 (11 years) and
MDAG & SL McGrice as a Shearer (casual) on and off during 1989-2000. He said he
was exposed to the noise of diesel motors, shearers and its mechanics and was
exposed to the same noise as above. He said he had to raise his voice to have a
conversation at 1 metre. He said his shift was 8-12 hours per day 5-6 days per week.
• Edstell Pty Ltd, at Coolebah, NSW, 1983-1989 (6 years) as a Farm Hand (sheep,
goats and wheat). He said he was exposed to the same noise as above, eg, tractors
(no air conditioning), chainsaws, fencing, shotting 222 rifles, power tools and noise of
machine repairs. He said his shift was 8 hours per day 5-7 days per week. He said he
had to raise his voice to have a conversation at 1 metre. He said no hearing protection
was worn.
• 1973-1983 various employers in NSW in wheat, sheep and cattle, as a Farm Hand.
He said he was exposed to the same noise as above of tractors, no air conditioning,
chainsaws, power tools ,cattle noise, trucks, motor bikes and shooting with a .222 rifle,
not frequently (he said he is a right handed shot). He said his shift was 8-12 hours per
day 5-7 days per week. He said he had to raise his voice to have a conversation at 1
metre. He said no hearing protection was worn.”
The Medical Assessor considered the appellant had “suffered from occupational noise exposure causing partial and bilateral occupational noise induced hearing loss”. The Medical Assessor considered, based on the history he obtained of the appellant’s exposure to occupational noise, that there was no other competing medical cause for the appellant’s hearing loss. The Medical Assessor said that he “formed the opinion that [the appellant’s] sensorineural hearing loss is caused by occupational noise exposure”.
Based on his findings from the audiometry and the history he had obtained, the Medical Assessor considered that the appellant’s hearing losses in the frequencies from 500Hz to 4000Hz was due to exposure to occupational noise. The binaural hearing impairment that the audiometry revealed the appellant had at those frequencies was 28.7%.
The Medical Assessor considered that at the date the appellant suffered his injury of hearing loss, which in accordance with s 17 of the 1987 Act was the last date on which he was employed by the respondent, the appellant was not suffering from severe tinnitus. The Medical Assessor, because of that, did not add anything for tinnitus to the appellant’s binaural hearing impairment due to hazardous noise in the process of assessing the appellant’s permanent impairment from his hearing loss. The Medical Assessor made a correction for presbyacusis of 2.9%, which resulted in the Medical Assessor assessing the appellant’s final hearing impairment due to exposure to industrial noise to be 25.8%.
The Medical Assessor noted in the MAC that impairment translated to 13% WPI.
The Medical Assessor however considered that the appellant’s exposure to hazardous noise subsequent to his injury of hearing loss on 1 January 2002 had caused permanent and irreversible damage to the appellant’s cochleas and the Medical Assessor considered that, when assessing the appellant’s permanent impairment from his injury of hearing loss, that proportion of the appellant’s overall binaural hearing impairment that was due to his exposure to hazardous noise after 1 January 2002 ought to be excluded. The Medical Assessor reasoned that the method of determining that proportion should be based on a “time weighted assessment”. The Medical Assessor noted that the appellant had “worked for a total of 49 years in occupational noise and for 29 years in noise as at the date of injury”. The Medical Assessor, using “a time weighted method” computed that 60% of the appellant’s permanent impairment from hearing loss was due to his injury on 1 January 2002 which equated to 7.8% WPI rounding up to 8% WPI.
Accordingly the Medical Assessor certified within the MAC that the appellant had 8% WPI from his injury of hearing loss deemed to have happened on 1 January 2002.

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.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel considered, for reasons explained below, the MAC contained a demonstrable error and the Appeal Panel would need to examine the appellant to obtain further information regarding the appellant’s exposure to noise in order to be able to correct that error. The Appeal Panel appointed
Medical Assessor Robert Payten, one of its members, to conduct that examination. Medical Assessor Payten’s report to the Appeal Panel on his examination is extracted below.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor wrongly excluded from his assessment of his permanent impairment from his injury on 1 January 2002 the impairment due to hearing loss that was due to noise to which he was exposed subsequent to
1 January 2002. The appellant submitted that the effect of s 17 of the 1987 Act is such that all of the appellant’s hearing loss was deemed to have happened in one blow on the date of his injury irrespective of whether it occurred before or after the date of injury. The appellant referred to several authorities in support of this submission.
The appellant also submitted that, in the alternative, his exposure to noise prior to
1 January 2002 materially contributed to the hearing loss he had from his exposure to noise over the whole of his lifetime and “as such the entirety of the loss and the impairment that results from it is compensable”.
The appellant further submitted that “in any event the Medical Assessor was in error by simply adopting a time weighted assessment as the basis for determining how much of the hearing loss is attributable to the injury and how much is due to subsequent noise exposure”.
The appellant also submitted that the Medical Assessor erred by not making any allowance for tinnitus for two reasons. Firstly, the Medical Assessor erred by seeking to differentiate between the hearing loss that occurred before 1 January 2002 and that which occurred subsequently. Secondly, the Medical Assessor did not consider whether the impairment the appellant had due to tinnitus resulted from the injury of hearing loss that the appellant had suffered on 1 January 2002. That is, he did not consider whether that injury materially contributed to the development of the appellant’s tinnitus.
The appellant did not challenge the measurements the Medical Assessor obtained from the audiometry that was performed of the appellant. The appellant also did not challenge the correction the Medical Assessor made for presbycusis.
The respondent did not make any submissions in response to the appellant’s appeal. The
Appeal Panel notes that on 6 October 2022 the appellant’s solicitors lodged with the Commission a Certificate of Service in which they certified that they had served the appellant’s Application to Appeal Against the Decision of the Medical Assessor on the respondent’s lawyers, namely Turks Legal, on 2 September 2022. In accordance with Procedural Direction PIC7 the respondent was required to have lodged a Notice of Opposition in Response to the Application by 23 September 2022. The respondent did not do so.

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.
The Appeal Panel rejects the appellant’s submission to the effect that s 17 of the 1987 Act requires the Medical Assessor to treat all of the appellant’s hearing loss due to his exposure to hazardous noise as having occurred on 1 January 2002 irrespective of whether his hearing loss had occurred before or after 1 January 2002. That submission is inconsistent with the authority of Schofield v Abigroup Ltd[1]. The ratio of Schofield is, in substance, that the last employer of a worker to which s1 7 of the 1987 Act applies is only liable to compensate the worker for the injury to the worker’s hearing that had occurred “in one blow” by a gradual process as at the date the injury was deemed to have occurred under s 17(1) of the 1987 Act. A Medical Assessor when assessing the degree of permanent impairment of a worker as a result of that injury is required to make an appropriate adjustment for any injury to the worker’s hearing that results from the worker’s subsequent employment outside the jurisdiction. In other words, if the worker suffers further hearing loss due to exposure to hazardous noise after the deemed date of that injury in employment to which s1 7 of the 1987 Act does not apply, the last noisy NSW employer will only be liable for the permanent impairment a worker has suffered due to hearing loss as at the date the worker’s injury is deemed to have occurred under s 17. By extension, that authority applies to the circumstances of this case where the appellant suffered further damage to his cochleas due to his exposure to hazardous noise after 1 January 2002 in self employment and while attending to duties on his own farm.
[1] [2016] NSWSC 954 (Schofield) at [33].
The authorities to which the appellant refers to support his contention that s 17 required the Medical Assessor to treat all of his hearing loss to have occurred in “one blow”, irrespective of whether it occurred before or after his hearing loss up to 1 January 2002, are not germane to the appellant’s circumstances. Those authorities make clear that s 17 of the 1987 Act is a special provision that creates a series of fictions and presumptions and dispenses a need for a worker to establish causation of an actual hearing loss from work. That is to say a worker does not have to establish that his or her employment with a particular employer brought about or contributed to his hearing loss. The authorities establish that the work of s 17 is to determine the identity of the employer who last employed the worker in employment to the nature of which an injury of hearing loss by gradual progression was due.
Insofar as the appellant relied upon the authority of a Medical Appeal Panel, differently constituted, in the case of Curran v Linfox Armaguard Pty Ltd[2] to support its submission, the Appeal Panel observes that it is not bound by that decision whereas it is bound by the authority of Schofield.
[2] [2021] NSWPICMP 76.

The Medical Assessor was correct to find that the appellant’s exposure to occupational noise resulted in irreversible and permanent damage to the hairs in the appellant’s cochleas. The Appeal Panel notes that the damage to the hairs of the cochleas that is caused by exposure to hazardous noise commences at the basal opening of the chochlea, which is similar in structure to a sea shell, and then progresses along the channel of the cochleas with further exposure to noise. In other words, the damage caused by exposure to hazardous noise at a particular date will be permanent and irreversible. That damage will not progress unless there is further exposure to hazardous noise after that date.
Saying that another way, a worker who has suffered binaural hearing impairment as at a particular date due to damage to the hairs of his or her cochleas from exposure to hazardous noise preceding that date will suffer no further damage to the hairs of the cochleas, and hence no further hearing impairment, unless there is further exposure to hazardous noise. If there is further exposure to occupational noise then the further damage that the worker sustains to the worker’s cochleas from that further exposure is discrete from that which the worker suffered prior to that exposure. In other words, the worker’s overall hearing impairment is comprised of discrete components, that consisting of the worker’s exposure up to the particular date and that consisting of the worker’s exposure after that date.
The appellant’s reliance on the decision of Murphy v Allity ManagementServices Pty Ltd[3] is therefore misplaced. That case involved a worker who slipped and fell whilst carrying out the tasks of her employment and who, as a result, injured several body parts including her right shoulder. She also fell in an unrelated non-work incident on an indeterminate date and again injured her right shoulder. The worker had surgery to her right shoulder and claimed compensation from her employer for the costs of that surgery on the basis that the surgery was reasonably necessary as a result of her injury to the right shoulder that occurred in her employment. The arbitrator found that the worker’s fall in the non-employment related incident was “not an insignificant event and had probably caused ‘some pathology at ... which is significant’”. The arbitrator noted that the worker had the onus of proof and the arbitrator was not satisfied that the worker had discharged that onus. Deputy President Roche found that the arbitrator’s statement that the worker had probably suffered some pathology due to the non-employment related fall was entirely speculative and consequently that the arbitrator had erred. Deputy President Roche also held that even if that non-employment related fall did cause some additional pathology there was no evidence presented that substantiated that the surgery was required because of that additional pathology. Deputy President Roche further held that if the non-employment related fall contributed to the need for surgery then that still would not defeat the worker’s claim because a condition can have multiple causes. Deputy President Roche held that a work injury does not have to be the only or even substantial cause of the need for relevant treatment in order that the worker can be compensated for the cost of that treatment. Deputy President Roche held that the worker only had to establish that the injury materially contributed to the need for surgery.
[3] [2015] NSWWCCPD 49 (Murphy).
Murphy is not relevant to the present circumstances because in this case the appellant had suffered a permanent impairment from the damage to his cochleas as at 1 January 2002. He also had further impairment due to additional and discrete damage to his cochleas from further and additional hazardous noise after 1 January 2002. The adverse pathology to his cochleas from each exposure was discrete and consequently his impairment from each exposure was discrete.
Further, and in any event, as stated above, the Medical Assessor was and the Appeal Panel is, bound by the authority of Schofield.
Consequently the Medical Assessor was correct to exclude from his assessment of the appellant’s permanent impairment from the appellant’s injury of hearing loss on
1 January 2002 that proportion of his impairment that was caused from the damage to his cochleas that that was caused from his exposure to hazardous noise subsequent to
[4] Pereira v Siemens Ltd [2015] NSWSC 11133 at [81] and the authorities referred to therein, which relates to s323 but the principle extends to an assessment made in accordance with s 322.
1 January 2002. However, the Appeal Panel accepts the appellant’s submission that the Medical Assessor erred by adopting “a time weighted assessment” to determine what that proportion is. The extent of the damage to a worker’s cochleas from exposure to hazardous noise will depend upon both the duration to which the worker was exposed to that noise and also the volume of the noise to which the worker was exposed. Hence, a “time weighted assessment” can only be used to determine what proportion of a worker’s hearing impairment occurred before and after a specific date if the volume and type of the noise to which the worker was exposed was the same before and after that date. To use a time weighted assessment to determine the damage to a worker’s cochleas before and after a specific date without having evidence of the volume and type of the noise to which the worker was exposed, assumes that the volume and type of the noise to which the worker was exposed is the same before and after that date.[4]
The Appeal Panel considers that the Medical Assessor made an error by determining the proportion of the appellant’s hearing loss due to damage to his cochleas that occurred subsequent to 1 January 2002 by using a time weighted assessment. The Appeal Panel also considered that the history that the Medical Assessor set out in the MAC with respect to the appellant’s exposure to hazardous noise before and after 1 January 2002 was insufficient to make a clinical assessment of the extent to which the appellant’s cochleas were damaged by his exposure to noise before 1 January 2002 and the extent to which it was damaged by his exposure to noise after that date.
Further, the Appeal Panel accepts the appellant’s submissions to the effect that the Medical Assessor erred in assessing the appellant’s impairment due to tinnitus from his injury of hearing loss on 1 January 2002. The extent to which a worker experiences tinnitus depends upon the overall hearing loss a worker has. In other words, there is no direct linear relationship between the extent of damage a worker has to his or her cochleas and the extent of the tinnitus a worker may suffer. The extent of tinnitus a worker has cannot be discretely divided into separate components due to damage that occurred to worker’s cochleas before a particular date and what occurred after that date. Consequently, the authority of Murphy is engaged in such circumstance.
The appellant’s tinnitus results both from the damage that was occurred to his cochleas before 1 January 2002 and that which occurred subsequent to that date. Both exposures have materially contributed to the tinnitus he presently has. The appellant’s present tinnitus cannot be discretely divided and attributed to damage to his cochleas before 1 January 2002 and the damage that was caused after 1 January 2002. It is an indivisible symptom that results both from the pathology that was caused to his cochleas before 1 January 2002 and that which occurred after.
Consequently, the Medical Assessor was also wrong not to include any component for the appellant’s tinnitus when assessing the appellant’s permanent impairment resulting from his injury of hearing loss deemed to have occurred on 1 January 2002.
As indicated above, the Appeal Panel considered that in order to correct the errors in the MAC it needed to examine the appellant so as to obtain a fuller history relating to his exposure to noise both before 1 January 2002 and after 1 January 2002. As said, the Appeal Panel appointed Medical Assessor Robert Payten, one of its expert members, to conduct that examination. His report to the Appeal Panel is as follows:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W3517/22
Appellant:	Anthony Mills
Respondent:	Canopus Corporation Australia Pty Ltd
Date of Determination:

Examination Conducted By:	Dr Robert Payten
Date of Examination:	12 December 2022

Appeal Panel
Member: Mr Marshal Douglas
Medical Assessor: Dr Robert Payten
Medical Assessor: Dr Joseph Scoppa
Direction: The panel previously determined that the appellant must submit for a clinical examination by me today on 12 December 2022. The purpose of this examination is to obtain a fuller history of:
1. The appellant’s exposure to hazardous noise after 1 January 2002.
2. The appellant’s symptoms of tinnitus.
Work history of noise exposure after 1 January 2002.
Mr Mills currently lives in a suburban street in Woodford in the Blue Mountains. He moved there in 2019 and has been there for approximately four years. For two to three days per week, he works as a self-employed handyman and is exposed to some noise from small chainsaws which he uses for about a half an hour at a time once a month. He wears good earmuffs while operating the chainsaw. He was also exposed to the noise of power tools, nail guns and saws while wearing good earmuffs for approximately half an hour at a time on the days that he works. From this history he has not been exposed to noise capable of causing hearing loss while living at Woodford in the past 4 years.
Prior to that, between 2015 and 2019, he lived on a farm at Wooton which is near Bulahdelah. This was only a small farm on which he ran about 50 head of cattle. He was exposed to some noise while fencing for himself and for neighbours. He drove a tractor for the purposes of slashing twice a year for 8 hours a day over a period of about 10 days. He wore good earmuffs on the small open tractor. It was necessary to raise the voice to be heard at a distance of 1 metre on his tractor.
Occasionally he used a chainsaw to cut firewood for 8 hours a day while wearing good earmuffs. In this period, from 2015 to 2019, he was probably exposed to sufficient noise to have caused mild hearing loss.
At that time, he also worked part time in Bulahdelah at a property almost next door to him and did some fencing and also some slashing while driving the tractor, which had a cabin, and which was sound proofed.
Prior to that he lived on his own property in ‘Woodlands’ at Coolabah near Nyngan. He had previously bought this property in 1992 and sold it in 2014. In the period between 2002 and 2014, he was exposed to some mild tractor noise, but it was a new tractor with an air-conditioned cabin which was sound proofed. He was also exposed to noise from power tools, chainsaws, shearing engine noise and other farm related noise. He was also exposed to the noise of a front end loader used to clear woody weeds of paddocks. From the history given, he was exposed to noise in this period capable of causing hearing loss
Between 2007 and 2014, he lived half of the time at Lawson on the Blue Mountains and about half of the time at ‘Woodlands.’ While at Lawson, he worked part time as a handyman for about two days per week and was exposed to a small amount of noise from power tools.
The amount of noise that he was exposed to after 2002 was considerably less than the noise he was exposed to prior to 2002.
Work History Before 2002.
While still living at ‘Woodlands’ at Coolabah, he worked nearby part time for Canopus Corporation Australia Pty Ltd for two years (2001-2002) as a farmer. One of his jobs which was noisy there was building stockyards for camels that were trucked in from South Australia. This involved using a chainsaw to cut timber rails for three hours per day. He worked there for two days a week usually for 10-hour days. There was some tractor work in this job, but he wore his own earmuffs while on the tractor.
Before 2002, while living on Woodlands, he was exposed to a lot of tractor noise with an open cabin driving older noisier tractors. He also drove frequently a noisy front end loader which was used to clean out dams and also clear off woody weeds from paddocks. He lived at Woodlands from 1992, when he bought the property, through to 2002 and continued after 2002 until he sold it in 2014, but only half the time between 2007 and 2015 as explained above.
Prior to purchasing Woodlands, he lived on a property called Cooneybar from 1989 to 1992 as a farmhand. This was a property which he owned with his father and his then wife. He was employed by Cooneybar Pastoral Company. During this time, he also worked for SL McGrice as a casual shearer. As a shearer he was exposed to the noise of the engine driving the overhead gear so that it was necessary to raise the voice to be heard by another person at a distance of 1 metre.
In addition, at Cooneybar he was exposed to tractor noise where it was necessary to raise the voice to be heard at a distance of 1 metre.
From 1983 to 1989 he was employed on the same property Cooneybar for a company called Edstell Pty Ltd as a farmhand. This was his father’s property at that time. In this job he was employed as a general farmhand and was exposed to a lot of tractor noise, chainsaws, power tools and farm-related noise. He worked five days a week, eight hours a day and was exposed to noise for four to eight hours in a day.
From 1973 to 1983 he worked for various employers near Nyngan as a farmhand. He was exposed to the same sorts of noise as when he was employed by Edstell Pty Ltd. No hearing protection was provided. During this time there was a severe drought on, and he spent many hours cutting scrub with a chainsaw for probably six hours a day, but he always wore ear protection. This was mainly in 1982.
Within that period between 1973 and 1983, he was also working between 1975 and 1981 by GL Killen and Sons Pty Ltd as a farmhand. This was a very large property near Nyngan, and he did a lot of tractor work there ploughing and sowing wheat. No hearing protection was provided.
Summary
Mr Mills estimates that his noise exposure after 1 January 2002 was probably about 20% of his noise exposure while working prior to 2002.
From 1973 to 2002 he was exposed to repeated loud noise as a farmhand over this 29 year period. One of the main sources being older and noisier tractors.
After 2002 until 2014 he drove a modern tractor with a sound proofed cabin at Woodlands.
At Wooton and Buhladelah he was exposed to loud noise only intermittently between 2015 and 2019.
There has been no significant noise exposure since 2019.
Tinnitus.
Mr Mills is not sure of the exact date when his tinnitus began but he definitely had it at the time he met his second wife in 2007.
Currently he has trouble getting off to sleep and might take an hour on average because of the loudness of his tinnitus. If he wakes up, it can take a half an hour to get back to sleep. During the day it affects his concentration and he often has to re-read a document that needs his attention.
Opinion:
In my opinion, he has severe tinnitus.
In my opinion, from the history taken, his severe tinnitus gives rise to a 3% loading to his occupational binaural hearing impairment of 25.8% (Dr Williams on his Medical Assessment Certificate found an adjusted total binaural hearing impairment of 25.8%).
Allowing for severe tinnitus, he has a 28.8% binaural hearing impairment which gives rise to a 14% whole person impairment (Table 9.1).
Yours faithfully,
Signed Dr Robert Payten
Date: 12 December 2022 “

The Appeal Panel adopts the history Medical Assessor Payten obtained. The Appeal Panel also agrees with the summary Medical Assessor Payten set out in his report and the opinion Medical Assessor Payten has expressed in his report. The Appeal Panel considers that the appellant’s explanation of his exposure to noise before 1 January 2002 and his exposure to noise after 1 January 2002 is accurate based on the history Medical Assessor Payten obtained. The Appeal Panel considers, having regard to the nature of the noise, in terms of the volume, and the duration to which the appellant was exposed to noise before and after
1 January 2002, that 20% of the appellant’s permanent impairment is likely due to the damage to his cochleas that was caused after 1 January 2002. That proportion of his permanent impairment does not therefore result from his injury of hearing loss deemed to have occurred on 1 January 2002. Saying that the reverse way, the Appeal Panel assesses the appellant has 11% WPI resulting from his injury of hearing loss deemed to have occurred on 1 January 2002, after an allowance of 3% for severe tinnitus has been made to his binaural hearing impairment due to occupational noise.
For these reasons, the Appeal Panel has determined that the MAC issued on
15 August 2022 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

Matter Number:	W3517/22
Applicant:	Anthony Mills
Respondent:	Canopus Corporation Australia Pty Ltd

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 Brian Williams 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
01/01/2002	500	25 20	15 10	0.6	0.6
	1000	20 10	20 10	0.8	0.8
	1500	30 25	40 30	3.9	3.9
	2000	40 45	50 45	5.3	5.3
	3000	80 70	85 75	9.2	9.2
	4000	80 70	80 70	8.9	8.9
	6000	75	80
	8000	95	80
TOTAL % BHI: 28.7%
Less Pre-existing non-related loss: 0
Less Presbyacusis correction: 2.9%
Add % of severe tinnitus: 3%
Adjusted total % BHI: 28.8%
Resultant total BHI of 28.8 % = 14% whole person impairment (Table 9.1), of which 20% is due to exposure to hazardous noise after 1/01/2002, resulting in 11.2% WPI due to injury on 1/01/2002, rounded to 11% WPI in accord ace with [1.26] of the Guidelines.

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002

[2023] NSWPICMP 18

24 January 2023