Nichele v Bahra Karat t/as Sibella Dressmaking
[2022] NSWPICMP 221
•18 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nichele v Bahra Karat t/as Sibella Dressmaking [2022] NSWPICMP 221 |
| APPELLANT: | Valentina Nichele |
| RESPONDENT: | Bahra Karat t/as Sibella Dressmaking |
| APPEAL PANEL: | Member Jane Peacock Dr Joseph Scoppa Dr Brian Williams |
| DATE OF DECISION: | 18 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Industrial deafness; appellant alleged error in manner in which the Medical Assessor (MA) approached assessment in circumstances where there was a prior settlement and in failure to include losses below 3000Hz; the Appeal Panel found error; the whole of the impairment due to the injury needed to be assessed by him including considering the nature and duration of occupational noise exposure over about 46 years and the nature and extent of all the hearing losses without reference to any prior settlement entered into by the appellant; the appellant cannot be double compensated and any prior settlement would ultimately be deducted; however an MA is not to approach the assessment of the overall permanent impairment due to occupational noise exposure by using the prior settlement as the starting point for the assessment of the loss and merely assess further losses after that settlement to determine the total impairment; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 December 2021 Ms Valentina Nichele (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Henley C Harrison, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 November 2021.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 that she be re-examined by a MA 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 although the Appeal Panel found error in the MAC, there was enough material before the Appeal Panel to enable a determination to be made.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA 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.
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 matter was referred to the MA as follows:
“Date of injury: 30 June 2004 (deemed)
Body parts/systems referred: Hearing loss
Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB HL
Air Bone
Total % BHI
Occupational % BHI
30 June 2004 (deemed).
500
55 55
11.2
45 45
8.1
8.6
0
1000
45 45
10.2
45 45
10.2
10.2
0
1500
50 50
9.7
55 55
11.2
9.9
0
2000
60 60
9.4
60 60
9.4
9.4
0
3000
80 65
9.1
75 65
8.4
8.6
8.6
4000
90 60+
9.8
85 60+
9.5
9.5
9.5
59.4
56.8
18.1
TOTAL % BHI: 56.2
Less Pre-existing non-related loss: 38.1
Less Presbyacusis correction: 4.9
Add % of severe tinnitus: 1.0
Adjusted total % BHI: 14.2
Resultant total BHI of 14.2 % = 7 % whole person impairment (Table 9.1)
The worker appealed.
In summary, the appellant’s submissions on appeal were that the MA made the following demonstrable errors:
· by erroneously considering elements of causation in determining which frequencies have been effected by exposure to noise, and
· by failing to include the loss at the lower frequencies.
In summary, the respondent submitted that the MA did not make a demonstrable error and the MAC should be confirmed.
The MA recorded a history as follows:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: During her time with the respondent and with previous employers the worker was exposed to loud noise with the potential to damage hearing. She has had difficulty hearing for 20-30 years and had a settlement for 6% whole person impairment for hearing loss with her immediate previous employer in 2003. Since then her hearing has continued to deteriorate. Treatment has consisted of the wearing of hearing aids.
• Present treatment: She has worn hearing aids for about four months but did not wear them for the assessment.
• Present symptoms: She has difficulty hearing family, friends and other people and particular difficulty on the telephone. The ears appear about equally affected. She needs the television turned up at home about which her children complain. The hearing is worse in group conversations and background noise. She has also had noises in the ears (tinnitus) for about 30 years; she has become fairly used to this but it can sometimes interfere with her sleep so I consider that it is severe. The hearing has continued to deteriorate since the date of injury
• Details of any previous or subsequent accidents, injuries or condition: Other than previous occupational noise exposure, there are no previous or subsequent accidents, injuries or conditions.
• General health: She has been operated on for lung cancer and said that she appears to be cured from this; she had no chemotherapy. She has also had a renal cyst removed, appendix removed and a tonsillectomy and also suffers from reflux for which she takes Nexium and has allergies to multiple medications. However none of these factors would be likely to significantly affect hearing and there is nothing relevant to the claim. In particular there is no history of previous ear disease, no history of familial deafness, none suggestive of exposure to ototoxic (hearing-damaging) medication and none of significant head injury.
• Work history including previous work history if relevant: She worked for the respondent for one year after leaving the previous employer, M.V. & V. Nelson Consultants in 2003 at which time she received a settlement for 6% whole person impairment for her hearing loss. She worked for this previous employer as a machinist from 1994 as stated in her statement which I went over with her carefully. She was exposed to noise both with the previous employer and with the respondent as described in the statement and I reached the conclusion that the noise exposure with both of these employers had the potential to damage hearing as did the noise exposure with her first employer in Australia from 1958 until 1993 which was Linchele Shirts.
She came to Australia in 1957 from her native Italy where she worked for four years as a machinist and pattern maker but she said that this did not expose her to very much noise (contrary to what is said in the statement). Whether it did or did not is largely irrelevant to the claim because it should have been taken into account in the previous settlement so I have not made any deduction for it.
• Social activities/ADL: Apart from the effects of her deafness as described under “present symptoms” on her activities of daily living, the worker avoids noisy or crowded places because of her increased difficulty understanding speech in such circumstances.
The worker has done no military service and has no noisy pastimes.”
The MA conducted a physical examination and recorded as follows:
“Due to the current Covid-19 pandemic the examination was restricted to the essentials – examination of the ears and assessment of the ability to understand me.
On examination, the ears were normal.
Tuning fork tests were performed. Rinne’s test was positive both sides and Weber’s test was not lateralised. These results are unremarkable.
I was able to converse satisfactorily with the worker with a normal speaking voice at a distance of about two metres.”
An audiological examination and the MA recorded as follows:
Audiometry was performed on the day of assessment in a quiet environment in a suitable sound proofed booth using a calibrated audiometer. The audiogram was performed by my audiologist, Jane Collingwood a qualified audiologist whose qualifications are BA DipEd, DipAud, MAud, MAudSA (CCP) Clinical Audiologist. Prior to the audiogram being performed, I ascertained that the worker had not been exposed to loud noise in the last 16 hours. The audiogram showed a bilateral, almost equal sensorineural deafness affecting all frequencies. The total binaural hearing impairment (BHI) derived from this audiogram is 56.2 %. A copy of the audiogram accompanies this report. Please note however that not all of this deafness is occupational deafness (“industrial deafness”).
The MA summarised the injury and his diagnosis as follows:
osummary of injuries and diagnoses:
Bilateral sensori-neural deafness partly due to occupational deafness and partly due to another cause or causes probably at least partly constitutional.
oconsistency 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). Also the history of only one more year of occupational noise exposure after the settlement in 2003 is not consistent with occupational noise exposure having caused a significant increase in the occupational hearing since then. The fact that the hearing loss is continuing to deteriorate since the settlement is also not consistent with occupational noise exposure being responsible for most of the hearing loss since then because there has been only one year of further noise exposure.
The MA explained his assessment as follows:
“The facts on which I have based my assessment of whole person impairment are:
The date of injury is after 1 January 2002 so the 1988 NAL Tables and the WorkCover Guides Fourth Edition – reissued 1 March 2021 have been used to calculate percentages of hearing loss and binaural hearing impairment (BHI) and the 1 April 2016 WorkCover Guides to derive Whole Person Impairment (WPI).
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.
The history is of significant occupational noise exposure.
Please also see below.
REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
Please see 9, above
There is 7% whole person impairment; that is there has been an increase in whole person impairment of 1% since the settlement in 2003.
In making that assessment I have taken account of the following matters:-
There has been comparatively very, very little further noise exposure since the settlement in 2003 – only one more year of it after 45 years of previous occupational noise exposure in NSW (and according to the history provided by Professor Fagan, a further four years of such noise exposure in Italy for a total of 49 years). Considering that occupational hearing loss usually progresses most rapidly in the first several years of such noise exposure, I believe that there has been very little further occupational hearing loss because the additional occupational noise exposure is comparatively insignificant compared to the previous exposure. In addition little of the current hearing loss can be due to occupational noise exposure because there is excessive involvement of all frequencies, both lower and higher. It is most unusual for the frequencies below 2000 cps to be affected to the extent that they are in this case and similarly even the higher frequencies are excessively affected; the higher frequencies rarely show more than 60 dB hearing loss and in this case in those compensable frequencies there is down to 90 dB hearing loss. One would therefore expect no more than 1% whole person impairment in addition to what was assessed for the settlement. In view of the foregoing I have apportioned the occupational hearing loss to the most noise-sensitive frequencies (3000 and 4000 cps); this apportionment gives 18.1% BHI before mandatory deduction for presbycusis. Further evidence that hardly any of the increase in hearing loss since the settlement is due to the year of further noise exposure is that the hearing loss continues now, 17 years since noise exposure ceased.
At the age of the worker, deduction of 4.9% is required for presbycusis so I have made this mandatory deduction.
I consider that the worker suffers from severe tinnitus because it interferes with her sleep and I have therefore made an allowance of 1.0 for this.
The above give a resultant total BHI of 14.2% which equals 7% whole person impairment.
The previous settlement was for 6% whole person impairment so there has been an additional 1% WPI due to employment with the respondent.
b. An explanation of my calculations (if applicable)
The non-related loss is the difference before correction for presbyacusis between the total BHI (56.2 %) and the noise induced hearing loss before correction for presbyacusis (18.1); it is therefore 38.1 %.
Mandatory presbyacusis has been deducted as prescribed in the 1988 NAL Tables.”’
I totally disagree with the assessments which both Professor Fagan and Dr Lucchese have made, the first of an additional 12% WPI and the latter an extra 9%. Both assessments are totally at variance with the history of the amount of noise exposure before and after the 1993 settlement for reasons I have given above.
The MA had regard to the other evidence before him and made brief comments as follows:
“I totally disagree with the assessments which both Professor Fagan and Dr Lucchese have made, the first of an additional 12% WPI and the latter an extra 9%. Both assessments are totally at variance with the history of the amount of noise exposure before and after the 1993 settlement for reasons I have given above.”
The MA approached the assessment of this matter in error. His job was to assess the impairment as a result of occupational noise exposure as at the deemed date of injury referred to him being 30 June 2004. The whole of the impairment due to the injury needed to be assessed by him including considering the nature and duration of occupational noise exposure over about 46 years and the nature and extent of all the hearing losses without reference to any prior settlement entered into by the appellant. Of course the appellant cannot be double compensated and any prior settlement would ultimately be deducted. However an MA is not to approach the assessment of the overall permanent impairment due to occupational noise exposure by using the prior settlement as the starting point for the assessment of the loss and merely assess further losses after that settlement to determine the total impairment which is what occurred here.
Moreover the MA based his assessment on the losses at 3000 and 4000Hz. Again he did this on the basis of assessing the loss since the previous settlement with the following reasoning:
“There has been comparatively very, very little further noise exposure since the settlement in 2003 – only one more year of it after 45 years of previous occupational noise exposure in NSW (and according to the history provided by Professor Fagan, a further four years of such noise exposure in Italy for a total of 49 years). Considering that occupational hearing loss usually progresses most rapidly in the first several years of such noise exposure, I believe that there has been very little further occupational hearing loss because the additional occupational noise exposure is comparatively insignificant compared to the previous exposure. In addition little of the current hearing loss can be due to occupational noise exposure because there is excessive involvement of all frequencies, both lower and higher. It is most unusual for the frequencies below 2000 cps to be affected to the extent that they are in this case and similarly even the higher frequencies are excessively affected; the higher frequencies rarely show more than 60 dB hearing loss and in this case in those compensable frequencies there is down to 90 dB hearing loss. One would therefore expect no more than 1% whole person impairment in addition to what was assessed for the settlement. In view of the foregoing I have apportioned the occupational hearing loss to the most noise-sensitive frequencies (3000 and 4000 cps); this apportionment gives 18.1% BHI before mandatory deduction for presbycusis. Further evidence that hardly any of the increase in hearing loss since the settlement is due to the year of further noise exposure is that the hearing loss continues now, 17 years since noise exposure ceased.”
Again the MA was required to assess the impairment that results from the injury of occupational noise exposure. The Appeal Panel has carefully considered the nature and duration of the occupational noise exposure over about 46 years and the nature and extent of all the hearing losses and is satisfied the MA made a demonstrable error by not including 2000Hz in the assessment. This is because the losses at 2000, 3000 and 4000Hz follow the typical pattern of occupational noise induced hearing loss due to the nature and duration of her occupational noise exposure. This matter cannot be compared to Shone v Country Energy (2007) NSWWCCMA 18 because the nature of the occupational noise exposure is very different.
Inclusion of the losses at 2000Hz gives an Adjusted total % BHI of 23.6 or 12%WPI. This represents her total noise induced hearing loss. As she has previously been compensated for 6% WPI as a result of noise induced hearing loss, her entitlement is to a further 6% WPI.
The Panel will correct the error made by the MA and will certify as follows:
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB HL
Air Bone
Total % BHI
Occupational % BHI
30 June 2004 (deemed).
500
55 55
11.2
45 45
8.1
8.6
0
1000
45 45
10.2
45 45
10.2
10.2
0
1500
50 50
9.7
55 55
11.2
9.9
0
2000
60 60
9.4
60 60
9.4
9.4
9.4
3000
80 65
9.1
75 65
8.4
8.6
8.6
4000
90 60+
9.8
85 60+
9.5
9.5
9.5
59.4
56.8
27.5
TOTAL % BHI: 56.2
Less Pre-existing non-related loss: 28.7
Less Presbyacusis correction: 4.9
Add % of severe tinnitus: 1.0
Adjusted total % BHI: 23.6
Resultant total BHI of 23.6 % = 12 % whole person impairment (Table 9.1)After deduction of 6% WPI due to a prior claim the resultant WPI due to injury on 30 June 2004 is 6%.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 November 2021 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 Henley C 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:-
Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI | ||
30 June 2004 (deemed). | 500 | 55 55 | 11.2 | 45 45 | 8.1 | 8.6 | 0 |
| 1000 | 45 45 | 10.2 | 45 45 | 10.2 | 10.2 | 0 | |
| 1500 | 50 50 | 9.7 | 55 55 | 11.2 | 9.9 | 0 | |
| 2000 | 60 60 | 9.4 | 60 60 | 9.4 | 9.4 | 9.4 | |
| 3000 | 80 65 | 9.1 | 75 65 | 8.4 | 8.6 | 8.6 | |
| 4000 | 90 60+ | 9.8 | 85 60+ | 9.5 | 9.5 | 9.5 | |
| 59.4 | 56.8 | 27.5 | |||||
TOTAL % BHI: 56.2 | |||||||
| Less Pre-existing non-related loss: 28.7 | |||||||
Less Presbyacusis correction: 4.9 | |||||||
Add % of severe tinnitus: 1.0 | |||||||
Adjusted total % BHI: 23.6 | |||||||
| Resultant total BHI of 23.6 % = 12 % whole person impairment (Table 9.1) After deduction of 6% WPI due to a prior claim the resultant WPI due to injury on 30 June 2004 is 6%. | |||||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Jane Peacock
Member
Joseph Scoppa
Medical Assessor
Brian Williams
Medical Assessor
0