Moore v Poskin Pty Ltd
[2025] NSWPICMP 655
•29 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Moore v Poskin Pty Ltd [2025] NSWPICMP 655 |
| APPELLANT: | Russell Charles Moore |
| RESPONDENT: | Poskin Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Thandavan Raj |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 29 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; medical appeal; assessment of hearing loss; consideration of all frequencies; shape of audiogram; audiogram showing equal loss at 1500Hz and 2000Hz; whether frequencies below 2000Hz should be included; Shone v Country Energy discussed; Held – Medical Assessor erred in not including all frequencies; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 May 2025 Russell Moore, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Sylvester Fernandes, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 April 2025.
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.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Moore spent his working career as an electrician. He started his apprentice in 1985 and worked for a variety of employers. He started the respondent company in 2017 and was a working director from that time. His work was always noisy, for an average of three to four hours per shift.
On 16 November 2023, he made a claim for lump sum compensation due to hearing loss. That claim was disputed on the basis of the degree of permanent impairment only. Part of that dispute concerned the frequencies that could be included in any assessment of impairment, which is now the issue on appeal.
As a result, a medical dispute arose, and proceedings were commenced in the Personal Injury Commission (Commission). Mr Moore was assessed by Dr Fernandes, a Medical Assessor, who issued a MAC on 29 April 2025. The Medical Assessor made an assessment of 10% whole person impairment, meaning Mr Moore was not entitled to any lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Mr Moore now appeals from that assessment.
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 Moore, in his appeal application, requested that he be re-examined by a Medical Assessor member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information contained in the material, including the MAC and the documents before the Medical Assessor to determine the appeal. The ground for appeal does not raise an issue that requires re-examination
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to include the frequencies in the 500Hz, 1000Hz and 1500Hz ranges in the assessment. The appellant sets out the relevant factual background to the case, including the competing independent medical expert opinions that led to the medical dispute being referred to the Commission. The appellant submits that the Medical Assessor failed to provide adequate reasons for excluding losses below 2kHz, and fails to properly consider and explain the “immission levels” that led to his conclusion to not include the lower frequencies.
In reply, the respondent concedes that losses at lower frequencies should not automatically be excluded, but submits that each case must be considered on its own merits, per Shone v Country Energy [2007] NSWWCCMA 18 (Shone) and Collings v Electrolux Pty Ltd [2013] NSWWCCMA 11 (Collings).
The respondent submits that the MAC is comprehensive, and the Medical Assessor has provided substantial detail and an explanation for his conclusion. He has provided adequate reasons for his conclusion, and it was open for the Medical Assessor to find that the hearing loss below 2kHz is not consistent with the diagnosis of industrial deafness.
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. This appeal concerns whether the frequencies below 2kHz should be included in the assessment of impairment, and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 issue in this case concerns whether the frequencies below 2000Hz should be included in the assessment of impairment. Hearing impairment, like all injuries referred for assessment, is to be assessed in accordance with the Guidelines. Chapter 9 of the Guidelines provides the criteria for assessment. By virtue of cl 9.9 of the Guidelines, the binaural tables in the National Acoustic Laboratories publication (the 1988 NAL publication) are used.
The Guidelines provide no specific criteria for the use of frequencies, other than at cl 9.9, which sets out when the extension tables, at frequencies 4000Hz-8000Hz are to be used. Appendix 3 of the NAL, which includes guidance before the tables, provides the following:
“Measure the hearing threshold levels (HTLs) of the person at the audiometric frequencies of 500, 1000, 1500, 2000, 3000, and 4000 Hz.”
The parties have referred to these tables and the decisions interpreting, including Shone and Collings. The Medical Assessor is also clearly aware of the legal issues around what frequencies are to be considered and included. He refers to this issue on page 5 of the MAC (which is no doubt part of his template of reasons):
“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.”
This shows the Medical Assessor was cognisant of the issues raised for consideration, as to what frequencies are to be included, but perhaps not the intricacies and ultimate and appropriate legal interpretation of the issue. It is not clear to the Appeal Panel what is meant by a “regulatory science status”. It is clear, based on Shone, and the various cases that have followed it, that the relevant question is one of consideration, and nothing in Shone invites inclusion of any specific frequencies. As is always the apparent and at the forefront of consideration of legal authorities, each case must be determined on its own facts. Precedent does not arise from facts but from law. Arising from Shone (if anything), and more appropriately from the Guidelines and the 1998 NAL publication, is that all frequencies must be considered, but not necessarily included.
Nothing in the appellant’s submissions, with reference to Shone, suggests otherwise. There is no imploration to elevate Shone to something more than an interpretation of the Guidelines in circumstances where there is a reason to consider the inclusion of the lower frequencies. Not all assessments of impairment will require the inclusion of frequencies below 2000Hz. What is required is the assessment of those frequencies, in accordance with the 1998 NAL publication, and the consideration of inclusion of those frequencies.
The question for determination before the Appeal Panel then becomes whether the Medical Assessor failed to consider a relevant consideration in reaching his conclusion. This is addressed in the appellant’s submissions as a failure to provide adequate reasons. The appellant submits that the Medical Assessor has failed to provide adequate reasons for concluding that a worker with equal but not greater loss in respective thresholds is not to be included in an assessment of impairment. The appellant also submits that the Medical Assessor has not explained why he has excluded lower frequencies where there is a lengthy history of occupational noise exposure.
The Appeal Panel accept the former submission posits the appropriate question, but not the latter. The question of inclusion of the lower frequencies does not, of itself, turn on the history of occupational noise exposure. It turns on a series of medical questions, informed by clinical judgment, expertise, and knowledge. In respect of the submissions concerning equal losses, the Appeal Panel accepts that there is a demonstrable error in the MAC, for the following reasons.
Medical Assessors occupy a particular role in the resolution of dispute in the Commission. Medical Assessors resolve medical disputes as defined in s 319 of the 1998 Act. That includes a dispute about the degree of permanent impairment of the worker “as a result of an injury”. This includes questions of causation, in a medical sense (see Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [110]). In the case of industrial deafness, what is “as a result of an injury” includes consideration of the frequencies that are affected by industrial deafness.
The starting point for this consideration, consistent with the approach taken by the Medical Assessor, is the shape of the audiogram. It is known, as a matter of medical science (confirmed by the expertise of the Medical Assessor members of this Appeal Panel) that industrial deafness affects higher frequencies first, in a descending fashion. This informs the “shape of the audiogram” discussions often seen in cases such as this. What it means, in practical terms, is that losses (measuring the dB level, not the impairment level) should increase from 500Hz up to 3000Hz with the maximum at 3000Hz, 4000Hz or 6000Hz.
That represents the starting point for the consideration of the issue. A downward sloping audiogram is consistent with industrial deafness. Diversion from such a shape suggests hearing loss caused by other causes, often of uncertain aetiology.
Of course, as posited in Shone and as is clear as a principle of law, each case must be determined on its own facts. No two individuals will have the same experience of noise exposure or same set of circumstances that have contributed to their hearing loss. There are a series of relevant factors that must be considered.
In the circumstances of the present case, there is a minor, but apparent inconsistency with the starting point identified above (that of a downward sloping audiogram). Mr Moore presents with equal dB loss at 1500Hz and 2000Hz. This makes the audiogram flat at those levels (although the remainder of the audiogram consistently shows the downward slope suggestive of industrial deafness).
It is not sufficient to immediately dismiss the consideration of lower frequencies on the basis of the “flat” part of the audiogram. The Medical Assessor explains under the heading “Reasons for assessment” why he did not include the lower frequencies on page 5 of the MAC:
“The configuration of the audiogram obtained in the frequencies of 1.5 and 2 KHz (on both sides) is not compatible with that of a noise induced hearing loss. In noise induced hearing losses, the threshold at a higher frequency is not equal or not better than that of a lower frequency. Note that the threshold at 2 KHz is equal to the threshold at 1.5 KHz (on both sides). This is not consistent with the manner in which a noise induced lesion spreads to the lower frequencies. In other words, the thresholds at 2 KHz and lower are not related to a noise induced hearing loss.”
The Panel does not agree that “the thresholds at 2 KHz and lower are not related to a noise induced hearing loss” and notes the Medical Assessor himself included the hearing losses at 2000Hz.
This explanation focuses mainly on the slope of the audiogram, and in particular that the thresholds at 2000Hz and 1500Hz are equal. What the Medical Assessor fails to do here, in explaining his path of reasons, is consider the other relevant factors that may have contributed to the shape of the audiogram and contribute to the worker’s hearing loss. In circumstances where the frequencies are equal (and not greater in the lower frequencies), there is a greater impetus to explain the conclusion reached. This is further heightened by the effect of the conclusion on the worker in this case, which means that he has no entitlement to lump sum compensation.
It is the Appeal Panel’s view that the appropriate consideration, and explanation for the conclusion reached that must be provided, goes beyond just the shape of the audiogram. The Appeal Panel would also note that there are aspects of the reasons provided that suggest a template approach was adopted, rather than appropriate consideration of the circumstances of the case, with adequate reasons in support of the conclusions reached.
The Medical Assessor provides a list of matters he has taken into account:
“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
7.No competing diagnoses and complications”
Whilst he provides the above itemised list, it is clear that the Medical Assessor has placed significant weight (perhaps above all else) on the shape of the audiogram. He explains as much in his reasons on page 5, which have been quoted at [31]. The other factors above, whilst not all of equal weight, must be appropriately considered. It is the Appeal Panel’s view that in the circumstances of this case, with the shape of the audiogram showing equal loss at 1500Hz and 2000Hz (as opposed to greater loss), which, were it 5dB different would, based on the Medical Assessor’s reasons, have entitled the worker to compensation, the Medical Assessor’s reasons are inadequate. A 5db difference is within the margin of error of an appropriately measured hearing test.
In the circumstances of the case, the additional factors that require greater consideration and explanation are the duration of hearing loss, the age of the worker, and the type of noise Mr Moore was exposed to in the course of his employment from 1985 up until the deemed date of injury in 2023.
Mr Moore was exposed to noise on a daily basis for three to four hours for a period of 38 years. This is extensive exposure.
The type of noise exposure is significant and an important consideration. The Medical Assessor sets out this history at page 2, with reference to “compressors, circular saws, drop saws, jackhammers”. These are examples of the kind of noise Mr Moore was exposed to. Missing from this, according to the statement dated 24 February 2025, Dr Howison’s report, and the report of Dr Harrison are some critical exposures, including most relevantly ramset guns. These produce significant noise, over and above those referred to in the history taken by the Medical Assessor.
A further consideration is Mr Moore’s age. Above the age of 55 age-related loss must be considered. In terms of calculating impairment arising from the 1998 NAL publication, this is set out in appendix 5 and provided for in cl 9.10 of the Guidelines. The Medical Assessor correctly made a presbyacusis correction of 0.4 in the table on page 7 of the MAC. However, it is not clear from the reasons provided by the Medical Assessor when he has considered Mr Moore’s age when determining not to include the frequencies below 2000Hz in the calculation of impairment. The tables contained in the 1998 NAL publication are based on studies of individuals who do not have age-related loss.
Age is a necessary consideration when considering what frequencies to include. There is no evidence, based on the reasons provided by the Medical Assessor, that he has considered that factor, outside of the correction made for presbyacusis. Where there is no age-related loss involved, the Appeal Panel accept that the shape of the audiogram, and the loss so determined, is the appropriate path to take. That is, on the balance of probabilities is the nature and duration of occupational noise exposure related to the nature and extent of all his hearing losses. Once age-related loss enters the picture it becomes difficult to separate whether hearing loss in lower frequencies is caused by industrial deafness or by other factors, including age-related loss. Where there is no difference between the frequencies, within the margin of error for measurement, greater consideration of the contribution of age becomes appropriate. The proper consideration is whether, on the balance of probabilities, the nature and duration of his occupational noise exposure including Ramset gun noise exposure and age-related hearing losses (presbycusis) are related to the nature and extent of all the hearing losses.
The Appeal Panel note that the Medical Assessor has not considered whether on the balance of probabilities the nature and duration of occupational noise exposure including Ramset guns and age-related hearing losses (presbycusis) are related to the nature and extent of all his hearing losses. The Panel notes nowhere in the MAC does the Medical Assessor refer to Ramset gun noise exposure even though it is noted in the claimant’s Statement and the reports of Drs Howison and Harrison. And nowhere in paragraph 10 is age-related hearing losses considered by the Medical Assessor. In the list of considerations in paragraph 10 age-related hearing losses are not mentioned.
In all of the circumstances of the case, the Appeal Panel are satisfied that it is appropriate to consider, and include, the frequencies below 2000Hz. This is based on multiple factors, including:
(a) the duration of noise exposure Mr Moore experienced – 38 years of continual exposure;
(b) the levels of that exposure, including at volumes not normally seen in industrial deafness (ramset guns);
(c) the contribution of age related hearing losses, and
(d) the shape of the audiogram, which shows equal (but not greater) loss at 1500Hz and 2000Hz.
In respect of the final point, the Appeal Panel accept that if loss had been greater at 1500Hz, then it would not be appropriate to include the lower frequencies in the assessment. It is the unique circumstances of this case, when considered together, that lead to the conclusion that the losses below 2000Hz must be included. It is also noted that once the 2000Hz/1500Hz frequencies are considered, the remainder of the lower frequencies continue on a consistent downward slant. Accordingly, the Appeal Panel has found that on the balance of probabilities the nature and duration of his occupational noise exposure including Ramset gun noise exposure and age-related hearing losses are related to the nature and extent of all his hearing loss.
There has been no challenge to the addition of severe tinnitus and the Appeal Panel are satisfied that it is appropriate to include in all the circumstances of the case.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 April 2025 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: | W2247/25 |
Applicant: | Russell Charles Moore |
Respondent: | Poskin 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 Medical Assessor Sylvester 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 |
| 16/11/2023 (deemed) | 500 | 20 20 | 15 15 | 0.4 | 0.4 |
| 1000 | 35 30 | 30 30 | 4.3 | 4.3 | |
| 1500 | 45 45 | 45 45 | 8.1 | 8.1 | |
| 2000 | 45 45 | 45 45 | 6.1 | 6.1 | |
| 3000 | 55 55 | 55 55 | 5.6 | 5.6 | |
| 4000 | 60 55 | 55 55 | 5.3 | 5.3 | |
| TOTAL % BHI: 29.8 | |||||
| Less Pre-existing non-related loss: n/a | |||||
| Less Presbyacusis correction: -0.4 | |||||
| Add % of severe tinnitus: 2.0 | |||||
| Adjusted total % BHI: 31.4 | |||||
| Resultant total BHI of 31.4 % = 16% whole person impairment (Table 9.1) | |||||
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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