Moore v Secretary, Department of Education
[2021] NSWPICMP 63
•28 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Moore v Secretary, Department of Education [2021] NSWPICMP 63 |
| APPELLANT: | Brian Moore |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL: | Member John Wynyard Dr Henley Harrison Dr Joseph Scoppa |
| DATE OF DECISION: | 28 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 9% regarding industrial deafness; Medical Assessor did not allow BHI at 1500Hz in face of audiogram consistent with such loss from noise exposure; worker in noisy employments since 1964; Held- Shone v Country Energy and Nobrega v Buena Bela Floor & Wall Tiling applied; Medical Assessor failed to give adequate reasons; intensity and duration of noise exposure consistent with industrial hearing loss at 1500Hz; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 December 2020 Brian Moore, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 7 December 2020.
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 assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016(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 23 October 2020 a delegate referred this matter for assessment of WPI caused by hearing loss which occurred on a deemed date of 22 May 2015.
Mr Moore had been employed by the respondent from 17 August 2009 to 22 May 2015 as a maintenance worker, being exposed to the noise of ride on and push mowers, whipper snippers, chainsaws, mulchers, hedges, drilling and hammering.
Mr Moore wore earmuffs and said that he had to shout above the noise to be heard by his colleagues at a distance of one metre.
Prior to that employment he was employed from 1998 to 2009 again as a maintenance worker at Kellyville Country Club and was exposed to similar levels of noise.
From 1964 to 1998 Mr Moore was exposed to the noise of hammering grinding and sanding as a panel beater.
Mr Moore had been aware of progressive hearing loss and tinnitus for the past 15 years and had worn hearing aids successfully over the previous 18 months prior to the assessment.
The MA found there to be 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 request to be re-examined by an MA who is a member of the Appeal Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The issues raised by the appellant were concerned with the assessment made by the MA of the loss of hearing at the lower frequencies. The findings in that respect were alleged to constitute an error, firstly because the findings were not included and secondly because the MA had failed to give adequate reasons for not doing so.
A third ground of appeal was that the MA had both made a demonstrable error and applied incorrect criteria in not applying a higher loading for the condition of tinnitus.
Mr Moore
The history taken by the AMS was reflected in Mr Moore’s somewhat more detailed statement of 15 April 2020. He said:[1]
“4. I last worked as a maintenance worker/general assistant with NSW Department of Education from 17 August 2009 until 22 May 2015. I was exposed to noise from drills, hammers, grinders, power tools, ride-on mowers push mower, whipper snippers, chainsaws, mulches, hedgers. I generally worked 5 days a week, 8 hours per day and I was exposed to constant and continuous noise for up 4 hours per day.
5. From 1998 to July 2009, I was employed as a mechanic and maintenance worker with Kellyville Country Club. I was exposed to noise from hammering, grinders, welding, motors, exhaust, mowers, whipper snippers, open cabin tractors, slashers and general workshop noise. I general worked 5 days a week, 8 hours per day and exposed to constant and continuous noise for up 4 to 6 hours per day.
6. Prior to this, I was employed as an apprentice/panel beater with various employers from 1964 until 1998. I was exposed to noise from hammering, grinders, sanders, working in confined spaces and general workshop noise. I worked 5 days a week, 8 hours per day and exposed to constant and continuous noise for up 7 to 8 hours per day.”
Medical Assessor (MA)
[1]Appeal papers page 47.
In his finding on physical examination the MA noted[2]:
“Pure tone audiometry was carried out in a suitable sound treated room that has been tested and shown to meet specifications laid out in AS/NZS 1269 using a calibrated audiometer. I considered the auditory thresholds to be valid and the patient’s responses were repeatable. …”
[2]MAC page 3.
At paragraph 10a of the MAC the MA said[3]:
“In summary, Mr Moore has a binaural high tone sensori-neural noise induced hearing loss of 18.0%, which represents a whole person impairment of 9.0%. This hearing loss is permanent and has reached maximum medical improvement (i.e. when the hearing loss is well stabilised and is unlikely to change substantially in the next year with or without medical treatment).”
[3]MAC page 4.
In his explanation at 10b, the MA said:[4]
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies. After consideration of the cumulative noise emission levels to which Mr Moore has been exposed, I consider that the frequencies 2000, 3000 and 4000 Hz in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.”
[4]MAC page 4.
Insofar as the other medical opinions before him were concerned, the MA said at 10c[5]:
“My audiogram is not the same as the audiogram carried out by Dr Williams. I therefore disagree with Dr Williams excluding the frequency 2000 Hz in the calculations for noise induced hearing loss. I agree with Dr Williams in making an allowance of 1% for severe tinnitus.
My audiogram is not the same as the audiogram carried out by Dr Corlette. I disagree with him accepting that all frequencies have been damaged by loud industrial noise. I disagree with him making an allowance of 4% for severe tinnitus.”
SUBMISSIONS
[5] MAC page 5.
Appellant
The appellant referred to the history taken by the MA and submitted that it was therefore accepted and uncontested that there had been a “significant history of prolonged, constant, continuous, frequent and intense exposure to loud noise of at least 90dB for a period of 51 years.” This was alleged to be an uncommon exposure and of significance when considering the audiogram taken by the MA, the accuracy of which was not challenged. In these circumstances it was argued that the MA was required to include the loss at the lower frequencies of 500, 1000 and 1500 Hz in both ears.
The appellant noted that the MA in explaining his calculations did not consider the lower frequencies or give any reasons why he had not done so.
When dealing with the opinions of other specialists, it was argued that whilst the MA stated that he disagreed with the frequencies used by the medico-legal experts on either side of the record, he failed to explain why he disagreed.
We were referred to Vegan, the principles of which we have discussed at the outset of these Statement of Reasons. We were also referred to Jose de Nobrega v Buena Bela Floor & Wall Tiling[6] and Jones v The Registrar WCC[7].
[6] [2016] NSWWCCMA 7 (Nobrega).
[7] [2010] NSWSC 481 (Jones).
The appellant submitted that the thresholds obtained in the audiogram regarding the left ear from 1500 to 4000 Hz were progressive throughout all of those frequencies, and in the right ear from 1000 to 4000 Hz. It was submitted that there was no frequency at which the threshold recorded was better than the preceding frequency, and accordingly the configuration of the audiogram was consistent with noise induced hearing loss at those lower frequencies - on the rationale of the MA himself.
The appellant submitted that the MA in those circumstances had not given reasons as to why the low tones were not noise induced and, in view of the fact that the failure to do so was inconsistent with the MA’s own reasoning, the inconsistency itself and the failure to give reasons constituted a demonstrable error.
We were referred to the well-known case of Shone v Country Energy (2007)[8] and Fox v Deniliquin Council (M1-2487/15), a copy of which was kindly supplied by the appellant.
[8] NSWWCCMA 18 (Shone).
So far as the issue regarding the tinnitus was concerned, the appellant submitted that the MA had fallen into error by failing to refer to all the evidence concerning the amount of the tinnitus loading.
The MA awarded a loading of 1% for severe tinnitus which it was submitted was inadequate in view of the evidence that the MA had not referred to, and in view of the opinion of Dr Corlette of 4%.
Respondent
The respondent submitted that the inclusion of lower frequency losses was a matter for clinical judgment, referring to Richardson v Hydro Aluminium Kurri Kurri Pty Ltd[9].
[9] [2013] NSWWWCC MA 56 (Richardson).
In Richardson the Appeal Panel said at [20]:
“The decision concerning whether lower frequency losses should be included in an assessment of noise induced loss is a matter for clinical judgment. Relevant to that judgment is the extent and duration of noise exposure. This means considering both the intensity and volume of noise to which the worker is exposed and the duration of time over which that exposure occurred. It is also relevant to consider the extent of the losses in the lower frequencies in relation to the hearing losses in the higher frequencies to determine whether they are consistent with being noise induced. The AMS did consider the nature and extent of all the hearing losses.
…
22. In this case the noise exposure is for 27 years. The nature of the employment is indicative of more intermittent noise exposure. It is also significant that the Appellant said that he wore ear protection for 27 years when in very noisy situations.”
In that case the appellant had been exposed to noisy employment for 16 years as an operator at AMEC.
The respondent submitted that the MA had set out clearly his reasoning and referred to the occupational noise exposure, the symptoms, the physical examination and the audiogram results.
The respondent conceded that there was a lengthy history of noise exposure but submitted that each case had to be determined on its own facts. The cases relied on by the appellant indicated that in circumstances whether there was a long exposure to noise, the lower tones may be implicated but, not necessarily, because each case must be determined on its own facts.
So far as the appeal regarding tinnitus was concerned, the respondent noted that Chapter 9.11 of the Guides gives a discretion up to 5% for severe tinnitus. The appellant did not identify any error in the assessment by the MA and a mere difference in opinion between the MA and Dr Corlette did not establish demonstrable error or incorrect criteria.
The history taken by the MA regarding tinnitus was clear, and there was no requirement for an MA to refer to each piece of evidence upon which his assessment was based, the respondent argued, citing Prasad v The Workers Compensation Commission[10].
[10] [2010] NSWSC418.
Discussion
The principles concerning the assessment of low tone hearing loss from 500 to 2000 Hz frequencies are tolerably well known. Shone is authority for the proposition that each case must be considered on its own facts regarding the duration and intensity of a worker’s exposure to industrial noise.
In Nobrega the Appeal Panel considered the authorities of Shone and Richardson. It found that although the MA had made an error regarding the length of exposure to industrial noise, the MAC was confirmed on the basis that the appearance of the low tones on the audiogram was not consistent with industrial hearing loss. However we agree that the appearance of the audiogram in this case, at least from the 1500 Hz frequency, was consistent with such loss.
Although the MA distinguished the other experts’ opinions because their audiograms were “not the same” as his, the appellant has accepted the audiogram of the MA, but still maintained that the MA fell into error. Each case involves an evaluation of the duration and intensity of the exposure demonstrated by the evidence, where an audiogram is consistent with industrial hearing loss in the lower frequencies.
In this case the AMS stated quite plainly that his decision was based on the consideration of the “cumulative noise emission levels” that had been experienced by Mr Moore. As the audiogram was consistent with noise induced hearing loss at the 1500 Hz frequency, the Panel considers that it was incumbent on the MA to explain why that frequency specifically had not been included, given it was consistent with the bilateral, symmetrical and progressive noise induced hearing loss at its lowest reading. We accept that the audiogram did not indicate any lower industrial hearing loss, as the reading at 1000 Hz did not show a bilateral or progressive loss.
The Panel notes the duration of exposure to industrial noise in his three occupations since 1964. The intensity we find to have been continuous and not intermittent, given the type of work Mr Moore was doing. The intensity of such exposure was capable of affecting the frequency of 1500 Hz. The exposure of up to four hours per day between 1998 and 2015 was of sufficient duration to be consistent with the binaural hearing impairment at 1500 Hz, indicated by the MA in the Table 4 Certificate of 8.4%. The audiogram is not consistent with hearing loss caused by exposure to industrial noise below that level.
The reasons given by the MA we found difficult to follow as to why he did not allow any lower tone hearing impairment beyond 2000 Hz. The facts of this case are so similar to the other cases that have been mentioned where audiograms were consistent with industrial hearing loss at lower tones than 2000 Hz, that some explanation was called for.
We are accordingly satisfied that the intensity and duration of Mr Moore’s exposure would have involved the binaural hearing loss level at 1500 Hz.
We do not find error in the assessment of Mr Moore’s tinnitus. The evaluation by the MA is a discretionary matter pursuant to Chapter 9.11 of the Guides, and the appellant’s submission was essentially that he would have preferred a reading such as that found by Dr Corlette. The appellant’s contention was simply a difference of opinion as to a matter on which reasonable minds might differ, and did not raise any appellable issue.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 December 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Kenneth Howison, 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 Air Bone | Total % BHI | Occupational % BHI |
| 22/05/2015 | 500 | 40 | 45 | 6.8 | 0 |
| 1000 | 45 | 45 | 10.2 | 0 | |
| 1500 | 45 | 50 | 8.4 | 8.4 | |
| 2000 | 50 | 60 | 7.5 | 7.5 | |
| 3000 | 60 | 75 | 6.6 | 6.6 | |
| 4000 | 80 | 75 | 8.4 | 8.4 | |
| TOTAL % BHI: 47.9 | |||||
| Less Pre-existing non-related loss: 17.0 | |||||
| Less Presbyacusis correction: 5.5 | |||||
| Add % of severe tinnitus: 1.0 | |||||
| Adjusted total % BHI: 26.4 | |||||
| Resultant total BHI of 26.4% = 13 % whole person impairment (Table 9.1) | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
John Wynyard
Member
Dr Henley Harrison
Medical Assessor
Dr Joseph Scoppa
Medical Assessor
28 April 2021
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