Pike v Norco Co-operative Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Pike v Norco Co-operative Limited [2021] NSWPICMP 154
APPELLANT:	Barrie Pike
RESPONDENT:	Norco Co-operative Limited
APPEAL PANEL:	Member Paul Sweeney
Dr Henley Harrison Dr Robert Payten
DATE OF DECISION:	26 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker alleges that the exclusion of hearing loss in the frequencies below 2000 hertz (Hz) by the Medical Assessor constituted demonstrable error; Held - MAC confirmed; configuration of audiograms not consistent with hearing loss below 2000 Hz being caused by occupational noise exposure.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 June 2021 Barrie Pike (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sylvester Valentine Fernandes, a Medical Assessor (MA, formerly an Approved Medical Specialist) who issued a Medical Assessment Certificate (MAC) on 12 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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

The appellant is 73 years of age. He had a long and varied working life. He commenced work as a bricklayer’s labourer working for the family business in 1963. He last worked for Norco Co-operative Limited (the respondent) in 2014. He commenced employment with the respondent as a factory worker in 1994 and progressed to production manager. In both roles he was exposed to the noise of the manufacturing process. Between these employments, the appellant worked for eight years as a plumber exposed to the general noise of a trade in which it was necessary to operate power tools and to general construction noise. Between 1972 and 1996, the appellant was employed to manage bowling clubs at Campsie and at Bowral. He was not exposed to noise in these employments.
The appellant complains of hearing loss. He says that he is experiencing difficulty understanding speech because of his hearing problems. In particular, he has difficulty if there is background noise. He says that he “cannot understand one voice amongst many”. He says that he does not enjoy socialising as he experiences embarrassment when asking people to repeat themselves.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act). His claim for compensation for industrial deafness is based on the opinion of Dr Paul Fagan, an ear, nose and throat surgeon, who provided a medico-legal report after consulting with the appellant at the request of his solicitors on 16 April 2020. Dr Fagan expressed the opinion that the appellant had total compensable binaural hearing loss of 35.2% which converted to 18% whole person impairment (WPI).
As the appellant had been exposed to occupational noise for 29 years and had a hearing loss “to the extent described”, Dr Fagan was satisfied that the lower frequencies below 2,000 Hz had been affected by occupational noise exposure. He opined that:
“There is no other explanation identified to account for this loss apart from noise exposure.”
Dr Winkler, an ear nose and throat surgeon, consulted with the appellant by telephone on 4 September 2020 at the request of the respondent. He expressed an opinion on the basis of the audiogram performed by Dr Fagan. Nonetheless, he reached a quite different opinion. He assessed binaural occupational hearing impairment at 18.6% and WPI at 10%. He commented on Dr Fagan’s findings as follows:
“Dr Fagan has included low tone losses in the calculation of occupational impairment.
I have only included the losses at 2,000, 3,000 and 4,000 Hz in the calculation of the loss.
For low tone losses below 2,000 Hz the audiogram needs to be gently sloping and there needs to be a history of intense noise over a very long duration.”
Dr Winkler also stated that the noise exposure experienced by the appellant at the respondent and earlier at Thompson Brothers, where he was employed as a plumber, did not provide “convincing evidence of intense noise exposure” so that the low tone hearing loss could be attributed to occupational noise.
The different opinions of Dr Fagan and Dr Winkler gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. The Registrar of the former Workers Compensation Commission referred the dispute to an Approved Medical Specialist, Dr Fernandes. Dr Fernandes saw the appellant and performed an audiogram on 5 May 2021.
By his MAC of 12 May 2021, Dr Fernandes certified that the appellant suffered 16.8% binaural hearing loss as a result of exposure to noise which converted to 9% WPI. He expressed the opinion that noise exposure was not a “suitable or sufficient” cause of the hearing loss at frequencies below 2Hz. He continued:
“Hence after consideration of the nature and duration (immission levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5KHz, the hearing losses at 2, 3 and 4KHz are caused by his occupational noise exposure.”
It is from this certification that the appellant brings this appeal.

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 panel determined that it was unnecessary for the worker to undergo a further medical examination. Neither party sought a re-examination by a medical practitioner who was a member of the panel. Further, as there are two audiograms and the appellant’s history is clearly stated in both his statement, the medical histories and the history obtained by the MA, another examination would not assist in elucidating the issues in dispute.

EVIDENCE

The panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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.
The basis of the appeal is quite straightforward. The appellant submits that:
“the AMS made a demonstrable error pursuant to s 327(3)(d) by failing to include the loss at, at least, 1.5KHz in both ears and also by not providing adequate reasoning for excluding the loss at, at least, 1.5KHz in both ears.”
After reviewing his work history, the appellant submits:
“The above is evidence of a significant history of long, constant, continuous frequent and intense exposure to loud noise for a period of 28 years. This is a significant history of exposure to loud noise to which substantial weight must be given.”
The appellant submits that the MA’s findings are clearly inconsistent with his long and intense history of noise exposure. This inconsistency constitutes a demonstrable error.
In the alternative, the appellant submits that the MA did not give reasons as to why the nature and duration of his noise exposure did not cause a loss at, at least, 1.5kHz. He continues:
“It is the Appellant’s submission that a 28 year history of noise exposure warrants inclusion of the lower frequencies, especially where as in this case, the configuration of the audiogram is also indicative of noise induced hearing loss.”
The appellant then refers to a number of frequently cited cases in respect of the issue from medical panels, including the decisions of Shone v Country Energy (2000) NSWWCCMA 18 (Shone), Thomas Carney v Pacific National (NSW) Pty Limited [2021] NSWWCCMA 36 and Moore v Secretary Department of Education (M15535650/20) a copy of which is enclosed with the submissions. In Moore the appeal panel accepted that work of 4 hours each day over a period of 17 years was of sufficient duration “to implicate the frequency at 1.5Khz”. In the present case, the appellant’s noise exposure was intense and of greater duration.
The appellant submits that the audiogram performed by the MA was bilaterally symmetrical and “progressive from 0.5KHz to 4.0KHz which is another characteristic of an audiogram indicative of noise induced hearing loss”. He continues that the:
“audiogram demonstrates all of the characteristics of an audiogram which is classically indicative of noise induced hearing loss, and as a result, the loss at 1.5KHz at the very least should have been included by the MA and the failure to do so was a demonstrable error.”
The respondent asserted that the appellant had not demonstrated an arguable case of error on the face of the medical assessment certificate in accordance with the reasoning in Pistonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 at [49]. It referred to the reasons given by the MA for determining binaural hearing loss and whole person impairment. It referred to the “extensive explanation” provided by the MA for determining that there was non-occupational hearing loss in this case.
The appellant also referred to Shone and sought to distinguish it on the basis that the hearing loss in that case was over a period of 49 years where the exposure to occupational noise in this case was less than 30 years. The respondent noted that in Sadler v Orica Ltd [2012] NSWWCCMA 31, it was stated that:
“The decision in Shone provides no authority other than each case must be decided and assessed on its own facts.”
The respondent referred to guidelines 9.4 where it is stated that a determination of non-work-related conditions involves the “medical judgement” of the examining specialist but that any such deductions should be recorded in the report. The submission concluded:
“It is clear the MA has given his full consideration to the evidence and facts recorded by him to support his findings. The judgment decision [sic] of the MA on that point is explained and is consistent with the evidence. It was a finding that was clearly open to the MA on the evidence. It does not reflect any error on the basis of incorrect criteria, nor demonstrable error.”

FINDINGS AND REASONS

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.
Section 328(2) of the 1998 Act provides that an 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 subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.

In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:

“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”

The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The panel accepts that it is incumbent on the MA to provide reasons for his determination of binaural hearing loss resulting from industrial deafness. It is necessary that the “actual path” of his reasons is stated in accordance with the instruction in Kocak. In the opinion of the panel, the MA has given cogent and extensive reasons for his assessment of industrial deafness and for his conclusion that hearing loss at the frequencies below 2KHz are not attributable to industrial deafness. It follows that there is no merit in the appellant’s argument that the MA failed to give reasons.
It is quite clear that the MA was acutely aware of the controversy as to whether, and in what circumstances, hearing loss in the lower frequencies should be considered in ascertaining industrial deafness. He specifically refers to Shone and also to the decision of Richardson v Hydro Aluminium Kurri Kurri Pty Ltd [2013] NSWWCCMA 56. Consequently, he sets out matters that he has taken into account in reaching his conclusion. They are:
(a)   type and duration of noise exposure (immission levels);
(b)     type of hearing impairment;
(c)     mode of onset and progression;
(d)     shape of audiogram;
(e)     presence of a dip or “bulge” around 4kHz;
(f)     clinical picture, and
(g)     no competing diagnoses and complications.
On the basis of these matters, the MA reached a definite conclusion that only the hearing losses at 2, 3 and 4KHz are caused by occupational noise exposure.
The MA also dealt with the opinion of Dr Fagan that these losses should be included as no other explanation had been identified to account for the loss. The MA concluded that this reasoning was fallacious. “The truth of a proposition must be judged by the evidence for that proposition and not the lack of evidence against it.”
Thus, the MA has provided an elaborate explanation of the reasons for not including hearing loss in the lower frequencies in his assessment of industrial deafness. His explanation is consistent with the opinion expressed by Dr Winkler in his report of 4 September 2020.
The appellant argued that the audiogram in this case demonstrated all of the characteristics of an audiogram which is indicative of noise induced hearing loss. Patently the MA did not agree with that opinion. Neither does the panel. The losses in the frequencies below 2,000Hz are comparatively high and in the opinion of the specialist ear nose and throat surgeons on the panel are unlikely to reflect hearing loss caused by industrial deafness. The losses below 2,000Hz form a relatively straight line of 30 dB at 500cps, 35 dB at 1000cps and 40 dB at 1500cps rather than a gently descending slope beginning at 15 dB at 500cps, as one might expect if the loss was caused by occupational noise exposure described by the appellant.
That feature is more obvious on the audiogram carried out by Dr Fagan. In respect of that audiogram Dr Winkler stated:
“The ASOHNS Guidelines state that occupational loss is not flat.”
The panel concludes that the reasoning of the MA that the audiogram in this case was inconsistent with industrial deafness in the low frequencies is correct. At the very least, it is not one which is indicative of industrial deafness in the low frequencies.
It must also be borne in mind that the certification of industrial deafness and the exclusion of non-occupational deafness is often a matter for clinical judgement involving an assessment of the audiogram and all of the other circumstances of the case. 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 judgement. Relevant to that judgement 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 low frequency 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 of the hearing losses.”
Even putting the configuration of the audiogram to one side, the panel remains of the view that the determination of the MA was open to him on the evidence. The MA recorded a detailed assessment of the appellant’s employment which varied from the appellant’s statement and evidence of Dr Fagan only in respect of the appellant’s early work as a brickie’s labourer for the family company. On the basis of that history, the MA concluded that the cumulative immission levels arising from the employments were not high enough to cause deafness in the lower frequencies.
Given the thoroughness of his history, the appeal panel concluded that it should prefer the history he recorded to the evidence of noise exposure as a brickie’s labourer in the appellant’s statement. However, even if the MA erred in recording the appellants noise exposure as a bricklayer’s labourer, it would not alter the outcome of the appeal as it would not significantly add to the cumulative emission levels arising from employment. Of course, the configuration of the audiogram, which the panel addressed above, would still stand in the way of a finding that the MA was in error in not including the frequencies below 2KHz in his assessment of occupational noise exposure.
As Richardson suggests conclusions as to immission levels are often a matter for the clinical judgement of the MA. They often involve matters of opinion and degree about which reasonable ear, nose and throat surgeons may differ. As the case law makes clear, there are no bright lines which enable an appeal panel to determine when noise levels are such as to be indicative of noise induced hearing loss in the lower frequencies. There are many factors which may be relevant, including the fact that the worker wore hearing protection during a large part of his long employment with the respondent.

It is for the appellant to prove that he suffers industrial deafness. Given the configuration of the audiogram conducted by the MA and the nature of the appellant’s noise exposure, it was open to the MA to find that he had not proven that the losses in the lower frequencies were associated with his employment. Dr Winkler was, of course, of the same opinion. In those circumstances, the appellant has failed to prove that there was demonstrable error in the MAC and the appeal must fail.
For these reasons the appeal panel has determined the MAC issued on 12 May 2021 should be confirmed.

[2021] NSWPICMP 154

26 August 2021