Psaila v South 32
[2024] NSWPICMP 584
•20 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Psaila v South 32 [2024] NSWPICMP 584 |
| APPELLANT: | James Psaila |
| RESPONDENT: | South 32 |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Thandavan Raj |
| DATE OF DECISION: | 20 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker sustained noise-induced hearing loss; Medical Assessor (MA) assessed 10% whole person impairment (WPI); worker lodged appeal on the grounds that the assessment was made on the basis of incorrect criteria; Held – MA had correctly assessed the worker’s hearing loss and provided sufficient reasons for excluding hearing loss in the lower frequencies; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 April 2024, James Psaila lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Kenneth Howison, who issued a Medical Assessment Certificate (MAC) on 2 April 2024.
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 assessment was made on the basis of incorrect criteria, and
· 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
The appellant was employed for approximately 40 years in employment that exposed him to loud noise.
The appellant’s last employer in employment that exposed him to loud noise was the respondent, South 32, where he was employed as a truck and loader operator.
The appellant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment compensation in respect of 11% whole person impairment (WPI) as a result of hearing loss, and pursuant to s 60 of the 1987 Act for the cost of hearing aids.
The respondent did not dispute that the appellant had sustained injury, or that it was his last employer in employment to which the nature of the injury was due.
The respondent accepted liability for the provision of hearing aids. It disputed the level of the appellant’s WPI, which it asserted was 10%. It therefore disputed that the appellant was entitled to permanent impairment compensation, as the injury had not resulted in permanent impairment that was greater than 10%, pursuant to s 66(1) of the 1987 Act.
On 13 February 2024, the appellant lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute.
The appellant claimed to have sustained injury on 12 July 2023, due to exposure to noise from industrial machinery and equipment whilst employed as a mobile equipment operator with the respondent.
The appellant claimed, pursuant to s 66 of the 1987 Act, the sum of $27,790 in respect of 11% WPI.
The respondent lodged its Reply on 4 March 2024. The Reply confirmed that the matters in dispute were those previously notified to the appellant.
On 7 March 2024, the President’s delegate referred the assessment of the appellant’s permanent impairment to Medical Assessor Howison. The date of the injury was deemed to be 12 July 2023.
On 2 April 2024, Medical Assessor Howison issued a MAC in which he assessed the appellant’s WPI as 10%.
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.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent submitted that the appeal could be decided solely on the basis of the written application and the written notice of opposition.
As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because it considered that it had sufficient evidence before it to determine the appeal.
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 MAC 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:
(a) Ground one: In the Table on the penultimate page of the MAC, the total of the three amounts of binaural hearing impairment (BHI) at 1500Hz, 1000Hz, and 500Hz is 26.9%. However, when calculating “Less pre-existing non-related loss”, the Medical Assessor erred by stating “29.9%”. The “Total % BHI” in the 1500Hz, 1000Hz, and 500Hz frequencies should be 26.9%. That is an error on the face of the record.
(b) The Medical Assessor has provided no explanation as to why the Table has different figures for “Total % BHI” and “Occupational % BHI” in the frequencies 2000Hz, 3000Hz, and 4000Hz. The Total % BHI for those frequencies adds up to 22.3%, whereas the Occupational % BHI for those frequencies adds up to 19.3%. That is an error on the face of the record.
(c) The assessment of Occupational Hearing Impairment on page 5 of the MAC and the Table should have been 49.2% – 26.9% = 22.3% – 1.3% (presbyacusis correction) + 2% (severe tinnitus) = 23% total binaural hearing loss, WPI 12%.
(d) Ground two: The four-decade continuous occupational noise exposure was a significant factor. By dismissing all the losses at frequencies of 500Hz, 1000Hz, and particularly 1500Hz, the Medical Assessor had erred.
(e) The Medical Assessor ought to have assessed at least some of the losses, at least in the 1500Hz frequency, as noise induced. Some of the loss should have been apportioned, or the s 323 (of the 1998 Act) statutory deduction of 1/10th used, in the event it was “difficult” to make such a deduction.
(f) The Medical Assessor did not have proper regard for the medical principle of gradual “creep” into the lower frequencies, commencing at 1500Hz. That the Medical Assessor did not consider this or give reasons and/or proper reasons why he was not prepared to consider these matters in assessing the non-occupational and occupational losses amounts to demonstrable error.
(g) Ground three: Having determined at paragraph 11c of the MAC that the pre-existing condition was “difficult” to determine, the Medical Assessor ought to have applied the statutory 1/10th deduction.
In reply, the respondent submits that:
(a) Grounds one and three give rise to error in the nature of clerical error, accidental slip, or omission. The matter should be referred back to the Medical Assessor for reconsideration: ss 327(6) and 329 of the 1998 Act, confined to the matters raised in grounds one and three.
(b) Ground two: there is no substance to this ground. The Medical Assessor in the exercise of clinical judgment gave full reasons for not including losses below 2000Hz in the relevant calculations, in particular having regard to the flat shape of the audiogram for the lower frequencies. There is no basis for asserting incorrect criteria or demonstrable error within the meaning of s 327(3) of the 1998 Act.
(c) The Table at the penultimate page of the MAC contains two obvious errors, specifically that the digit “9” appears instead of “6”. This occurs twice, as follows:
(i)the sum of the losses at all frequencies (500Hz to 4000Hz) should read 46.2%, not 49.2%, and
(ii)the sum of the losses at 500Hz to 1500Hz should read 26.9%, not 29.9%.
(d) The appellant’s submissions under ground one drew attention to the second of the above, but not the first.
(e) All that is required is the correction of the clerical errors, so the relevant portion of the Table reads:
Total % BHI: 46.2%
Less pre-existing non-related loss: 26.9%
Less presbyacusis correction: 1.3%
Add % of severe tinnitus: 2.0%
Adjusted total % BHI: 20%
Resultant BHI of 20% = 10% WPI (Table 9.1)
(f) Once the clerical errors are corrected so as to faithfully reflect the findings on audiogram, there is no difference to the ultimate outcome.
(g) Ground three: paragraph 11(b) of the Medical Assessor’s reasons should have referred to a Non-Occupational Hearing Impairment of 26.9%, not 29.9%. Otherwise it is clear that the Medical Assessor intended to, and did, find, a Non-Occupational Hearing Impairment of 26.9%.
(h) If the Medical Assessor intended to deal with this Non-Occupational component under s 323 of the 1998 Act, it would have been at odds with the available evidence to only apply a 10% deduction.
(i) The concept of “creep” is explicitly dealt with in the first paragraph of the MAC reasons, at paragraph 10(b). The Medical Assessor took into account the cumulative noise emission level and the shape of the audiogram.
(j) The appellant impermissibly seeks to substitute the audiogram and clinical judgment of Dr (Sharad S.) Tamhane for those of the Medical Assessor, contrary to authority, commencing with Shone v Country Energy.[1]
(k) The Panel in Thomas Carney v Pacific National (NSW) Pty Ltd[2] stated that Shone did not mean the lower frequencies must be included if the worker has had lengthy noise exposure – “Rather lower frequencies must be included if the audiometric configuration is consistent with the industrial deafness and if there is a long period in noisy employment.”
(l) Dr Tamhane’s opinion is unconvincing for the following reasons:
(i)he says that in cases of prolonged exposure, hearing loss “can” creep into the mid and low tones. He does not say that in every case they do so [sic];
(ii)he gave the appellant “the benefit of the doubt”, and
(iii)he relied on his own audiogram, which was not the same as that of the Medical Assessor.
(m) The matter should be referred back to the Medical Assessor for reconsideration, confined to grounds one and three.
[1] [2007] NSWWCCMA 18 (Shone).
[2] [2021] NSWWCCMA 36.
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.
The role of the Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[3] The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar (now the President’s delegate) has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a re-hearing. Such a flexible model assists the objectives of the legislation.
[3] [2008] NSWCA 116.
Section 327(2) was amended, with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) on which the appeal was made.
In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[4] Davies J considered that the form of the words used in s 328(2) of the 1998 Act, being “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
[4] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan & Ors[5] 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.
[5] [2006] NSWCA 284.
Medical assessment certificate
The parts of the MAC issued by the Medical Assessor that are relevant to the appeal are set out, where relevant, below.
Under “History relating to the injury”, at p 2 of the MAC, the Medical Assessor recorded:
“Mr Psaila has been aware of loss of hearing for the last ten years and of total loss of hearing in the left ear. He could not remember when he lost the hearing in his left ear. Mr Psaila has a ‘cicada-like’ tinnitus in his right ear.
…
Details of any previous or subsequent accidents, injuries or condition: There is a non-occupational hearing impairment of 29.9%.
…
Work history including previous work history if relevant: Mr Psaila commenced employment as a labourer with Garnock Engineering from 1980-1985 and was exposed to loud noise. He was then employed as a labourer with BHP working in the coal washery, coal preparation area and also as a truck and loader operator. In 2013, his employment was transferred to South 32 where he was contracted to BHP to continue in the same employment. Mr Psaila’s employment with South 32 exposed him to very loud noise of heavy machinery, cranes, rollers, conveyors, alarms and bells. He was also exposed to the noise of jackhammers and concrete cutters.”
Under “Findings on physical examination” at pp 2 and 3 of the MAC, the Medical Assessor recorded:
“On examination both tympanic membranes are normal and audiometry shows total deafness in the left ear and a right-sided sensorineural hearing loss
…”
Under “Summary” at p 3 of the MAC, the MA recorded:
· “summary of injuries and diagnoses:
Left-sided [sic] noise induced hearing loss.”
Under “Evaluation of permanent impairment” at p 3 of the MAC, the Medical Assessor recorded:
“…
a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system: No
b. Have all body parts/systems stabilised/reached maximum medical improvement? Yes
c. If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable
d. If stabilisation/maximum medical improvement of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Ear.”
Under “The facts on which the assessment is based” at p 3 of the MAC, the Medical Assessor recorded:
“I based my percentage assessment of binaural hearing loss on the audiogram I carried out on 21 March 2024, the history given by the worker and my clinical examination.”
Under “Reasons for assessment” at p 4 of the MAC, the Medical Assessor recorded:
“a. My opinion and assessment of whole person impairment
In summary, Mr Psaila has a binaural high tone sensorineural noise induced hearing loss of 20.0%, which represents a whole person impairment of 10%.
In making that assessment I have taken account of the following matters:
· The normality of the tympanic membranes
· The history of noise exposure
· The shape of the audiogram
b. An explanation of my calculations (if applicable)
Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first and only with further noise damage are the lower frequencies affected progressively gradually from the higher frequencies to lower frequencies; that is to say 1500Hz should be affected less than 2000Hz and 1000Hz less than 1500Hz and so on. The progression of hearing loss in the low frequencies needs to be clinically significant if this damage is from exposure to loud noise. Continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to have a rest period.
After consideration of the cumulative noise emission levels to which Mr Psaila has been exposed and the shape of the audiogram, I would consider that the frequencies 2000Hz and above in the right ear have been damaged by unacceptable noise levels and an equal amount of hearing loss should be allowed for loss of hearing in the left ear in accordance with the WorkCover Guides to the Evaluation of Permanent Impairment 4th Edition, 1 April 2016, page 44, section 9.12.
As the notional date of injury is after 1 January 2002, calculations have been made based on the National Acoustic Laboratory Tables of 1988. An addition of 2% for severe tinnitus is indicated.”
Under “Assessment of WPI (Whole Person Impairment)” at pp 4 and 5 of the MAC, the Medical Assessor recorded:
“…
I have calculated Mr Psaila’s permanent hearing impairment due to industrial deafness, using the recommended Workers Compensation Guidelines.
Assessment of Total Binaural Hearing Impairment
Binaural hearing impairment (section 9.9) = 49.2%
Less presbyacusis correction (section 9.10) = 1.3%
Add loading for severe tinnitus (section 9.11) = 2.0%
Total binaural hearing impairment = 49.9%
WPI (Whole Person Impairment) Table 9.1= 25.0%
Assessment of Occupational Hearing Impairment
Binaural occupational hearing impairment (section 9.9) = 19.1%
Less presbyacusis correction (section 9.10) = 1.3%
Add loading for severe tinnitus (section 9.11) = 2.0%
Total binaural occupational hearing impairment = 20.0%
WPI (Whole Person Impairment) Table 9.1 = 10.0%
Assessment of Non-Occupational Hearing Impairment = 29.9%
WPI (Whole Person Impairment) Table 9.1= 15.0%
My brief comments regarding the other medical opinions and findings submitted by the parties, and, where applicable, the reasons why my opinion differs.
My audiogram is not the same as the audiogram carried out by Dr Tamhane. I disagree with Dr Tamhane accepting that the loss of hearing in the right ear at the frequencies 500, 100 and 1500Hz is due to exposure to unacceptable noise levels, as my audiogram shows these frequencies to be flat. Noise induced hearing loss is progressive from the low to the high frequencies. I agree with Dr Tamhane equalising the loss of hearing in the left ear to that of the right ear when carrying out calculations for industrial deafness.
I disagree with Dr Tamhane making an allowance of 2.5% for severe tinnitus, as from the history I obtained I feel an allowance of 2% for severe tinnitus is indicated.
…
My audiogram is not the same as the audiogram carried out by Dr (Patrick) McSwiney. I agree with Dr McSwiney that the frequencies 2000, 3000 and 4000 Hz in the right ear have been damaged by unacceptable noise levels and for equilibrating the loss of hearing in the left ear to that of the right ear.
I disagree with Dr McSwiney making an allowance of 3% for severe tinnitus, as I consider an allowance of 2% is indicated from the history I received
…”
Under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” at pp 5 and 6 of the MAC, the Medical Assessor recorded:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) A non-occupational hearing impairment.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) A non-occupational hearing impairment of 29.9%.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth (can only be used when not at odds with available evidence)
There is no deductible proportion.”
Appellant’s evidence
On 9 February 2024, the appellant stated as follows.
In or around 1981, he commenced employment with Garnock Engineering. He worked there for approximately five years. He was exposed to noise from metal fabrication, grinders, welders, hammering of steel, and overhead cranes.
In or about 1985 he commenced employment with BHP. He frequently used jackhammers. In 1995 he became a mobile equipment operator. His duties included driving trucks, loaders, and hosing down the plant. The washery area was very noisy.
In or about 2013, his employment was taken over by South 32 and he continued performing the same tasks.
He suffered with continuous ringing tinnitus in both ears, in the form of a cricket sound, especially in his right ear. He found it annoying and at times it affected his concentration and thinking. He sometimes found it hard to fall asleep.
Medical evidence
Dr Sharad S. Tamhane – ear, nose and throat physician
Dr Tamhane reported on 28 July 2023.
Dr Tamhane recorded a history of bilateral hearing impairment. The appellant has had a non-functioning (“dead”) left ear since the 1980s.
The appellant had been aware of gradual deterioration in the hearing in his right ear for many years. He complained of intermittent right sided tinnitus. It could be annoying and aggravating, and at times it affected his concentration.
Dr Tamhane recorded a history of noise exposure that was consistent with the appellant’s evidence.
Dr Tamhane reported that the audiogram revealed a mild mid tone sensorineural hearing loss, deteriorating in a downward sloping configuration to become moderate to severe high tone sensorineural hearing loss in the right ear. The appellant’s left ear was non-functioning. He had a speech discrimination score of 88% phonetically balanced words correct at 65dB in the right ear.
The appellant’s tympanograms were normal, which Dr Tamhane reported ruled out any eustachian tube dysfunction.
Dr Tamhane opined that, based on the history obtained from the appellant, that is that the appellant had worked for 38 years in a very noisy industrial environment, the appellant wore only ear plugs as ear protection, and the appellant had been employed full time, with overtime as required, the tendencies, incidents and/or characteristics of his employment gave rise to a real risk of boilermaker’s deafness or deafness of a similar origin.
Dr Tamhane confirmed that the appellant’s last noisy employer was South 32.
Dr Tamhane noted that noise induced hearing loss normally affects the 2000Hz, 3000Hz and 4000Hz frequencies. However, in patients who have had prolonged exposure to loud noise for 30 to 35 years, and were unable to wear adequate ear protection, hearing loss can gradually creep into the mid and low tones of 1500Hz, 1000Hz and 500Hz.
The appellant had been exposed to continuous loud noise for 38 years. He could not wear ear protection all the time. Considering this history, looking at the configuration of his pure tone thresholds in the speech frequencies in both ears, after weighing all the probabilities, and giving the appellant the benefit of the doubt, Dr Tamhane attributed his sensorineural hearing loss in the 500Hz, 1000Hz, 2000Hz, 3000Hz and 4000Hz frequencies in the right ear to noise induced hearing loss.
Dr Tamhane noted that hearing loss as a result of noise exposure is always symmetrical and affects both ears similarly. Considering the appellant’s history, and after weighing all probabilities, it would be fair to apportion part of the hearing loss in the left ear to noise induced hearing loss. The portion of hearing loss would be the same as the percentage loss in the right ear. The additional hearing loss in the left ear was of unknown origin.
Dr Tamhane calculated the appellant’s percentage hearing loss for frequencies 500Hz, 1000Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz on the right ear air thresholds. (Emphasis in original).
Dr Tamhane calculated the appellant’s percentage hearing loss as follows:
Right ear: 19.7%
Left ear: 19.7%
Binaural: 19.7%
Presbyacusis binaural: 18.4%
Add 2.5% for tinnitus: 20.9%
WPI: 11%
Dr Patrick F. McSwiney
Dr McSwiney reported to the respondent’s insurer on 22 November 2023.
Dr McSwiney recorded a history that the appellant lost the hearing in his left ear many years ago and was unable to remember the circumstances. He had had difficulty hearing with his right ear for about 25 years. He had tinnitus in his right ear.
Dr McSwiney recorded an employment history that was consistent with the appellant’s evidence.
The appellant’s audiogram showed a moderate to severe “mixed” hearing loss in his right ear, becoming worse in the upper frequencies, and what amounted to a “dead ear” on the left. The conductive element in the appellant’s right sided hearing loss was most likely explained by the findings on tympanometry, which showed Type B tympanograms in both ears, indicating either marked negative middle ear pressures or effusions.
For the purposes of Dr McSwiney’s calculation, the same air and bone conduction thresholds that were recorded in the right ear had been allotted to the left. To calculate the appellant’s total hearing loss, his air conduction thresholds had been used. To calculate his losses due to noise, Dr McSwiney used the bone conduction thresholds recorded at the frequencies of 2000Hz, 3000Hz, and 4000Hz.
Dr McSwiney did not include the lower frequencies, as he was influenced by the audiogram performed by Amplifon on 26 June 2023. It showed the thresholds at 2000Hz to be better than those recorded at 1000Hz and 1500Hz. When, with prolonged noise exposure, there is “a creep” into the lower frequencies, one would expect noise to have an effect that diminished as it extended into the lower frequencies. Thus, one would expect to see a greater loss at 2000Hz than those below it. That this was not the case led Dr McSwiney to believe that the appellant’s hearing losses below this frequency were not due to noise.
Dr McSwiney made the following calculations:
Total BHL: 61.8%
BHL due to noise: 17.9%
Presbyacusis factor: 1.3%
Adjusted BHL due to noise: 16.6%
Allowance for tinnitus: 3%
Total BHL due to noise: 19.6%
A BHL of 19.6% translated to a WPI of 10%.
Ground one
Dealing firstly with the respondent’s submission that there are clerical errors in the MAC, and the matter should be referred back to the Medical Assessor for reconsideration, pursuant to ss 327(6) and 329 of the 1998 Act.
Section 327(6) of the 1998 Act provides:
“(6) The President may refer a medical assessment for further assessment under s 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note: Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).”
Section 329 of the 1998 Act provides that the President has the power to either refer the matter back to the Medical Assessor or to refer the matter to an Appeal Panel. A court or the Commission may also refer an assessment back to the Medical Assessor, but an Appeal Panel no longer has that power.
The power of an Appeal Panel to order a reconsideration pursuant to s 378 of the 1998 Act was repealed on the commencement of the Personal Injury Commission Act 2020.
The Appeal Panel’s powers are limited by s 328(5) of the 1998 Act, which provides:
“(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
It follows from the above, and the repeal of s 378 of the 1998 Act, that the Appeal Panel has no power to order a re-assessment or reconsideration of the MAC. It only has the power to either revoke or confirm the MAC.
The respondent’s submission with respect to reconsideration may therefore be put to one side.
In any event, the Medical Assessor’s calculations do not contain errors. Because the appellant has no hearing in his left ear, only his right ear was assessed (Chapter 9.12 of the Guidelines). When that is taken into account, the calculations disclose no error.
Chapter 9.12 of the Guidelines provides:
“Only hearing ear: A worker has an ‘only hearing ear’ if he or she has suffered a non-work related severe or profound sensorineural hearing loss in the other ear. If a worker suffers a work-related injury causing a hearing loss in the only hearing ear of x dB HL at a relevant frequency, the worker’s work-related binaural hearing impairment at that frequency is calculated from the binaural tables using x dB as the hearing threshold level in both ears. Deduction for presbyacusis, if applicable, and addition for severe tinnitus, is undertaken according to the Guidelines”.
The Medical Assessor assessed the total percentage BHI as 49.2%. He assessed occupational % BHI of 19.3%, so that the pre-existing non work-related loss was 29.9%. The figure of 29.9% was therefore deducted from the total BHI of 49.2% to give a total of 19.3%.
The Medical Assessor then deducted 1.3% for presbyacusis, leaving a total of 18%.
The Medical Assessor then added 2% for severe tinnitus, to give a total of 20.0% BHI. Using Table 9.1, the Medical Assessor then converted that figure to 10% WPI.
In Table form, the calculations are as follows:
Total % BHI: 49.2%, less 29.9% = 19.3%
19.3% less 1.3% (presbyacusis) = 18%
18% plus 2% (tinnitus) = 20%
Ground one of the appeal is dismissed.
Ground two
Ground two of the appeal asserts error on the part of the Medical Assessor in not including the losses, or part of the losses, at the lower frequencies, due to gradual “creep”; and failure to give reasons, or proper reasons, for his failure to do so.
The Medical Assessor’s reasons have been set out in full above. He has explained what was demonstrated by his audiogram, and why that caused him to consider only the losses at 2000Hz and above in assessing the appellant’s noise induced hearing loss.
The Medical Assessor has also referred to the evidence of Dr Tamhane and Dr McSwiney and explained that his audiogram differed from theirs.
Dr Tamhane reported that, where there has been prolonged exposure to loud noise, the hearing loss “can” gradually creep into the mid to low tones. After “weighing all probabilities and giving [the appellant] the benefit of the doubt”, he included the lower frequencies.
Dr McSwiney explained why, unlike Dr Tamhane, he excluded the lower frequencies from his calculations.
The reasons of a Medical Assessor do not need to be extensive but must be sufficient to enable a court to determine whether or not it involves an error of law.[6] The Medical Assessor’s reasons are clear, when read as a whole and fairly.
[6] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
Ground two of the appeal is dismissed.
Ground three
Ground three of the appeal asserts error on the part of the Medical Assessor in failing to apply a deduction of one-tenth pursuant to s 323 of the 1998 Act, because the Medical Assessor determined that the pre-existing condition was “difficult” to determine.
Section 323 of the 1998 Act provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
Note: Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
It can be seen that s 323(4) of the 1998 Act provides that the guidelines may make provision “for or with respect to the determination of the deduction required by this section”.
Chapter 9.4 of the Guidelines provides:
“The level of hearing impairment caused by non-work-related conditions is assessed by the medical specialist and considered when determining the level of work-related hearing impairment. While this requires medical judgement on the part of the examining medical specialist, any non-work-related deductions should be recorded in the report.”
Chapter 9.4 of the Guidelines does not refer to previous injury, pre-existing condition, or abnormality. The deduction in cases involving hearing loss is accordingly to be assessed using the medical judgement of the examining Medical Assessor, by considering the level of non-work-related conditions in determining the work-related hearing loss, with the caveat that the Medical Assessor is required to record the deductions he or she made for the non-work-related condition.
Section 323(2) of the 1998 Act does not apply if it is “at odds” with the medical evidence, and s 323(3) provides that the medical evidence is that which is accepted or preferred by the Medical Assessor in connection with the medical assessment of the matter.
In matters of occupational noise induced hearing loss of gradual process, the Medical Assessor considers the medical history, including the nature and duration of occupational noise exposure, and physical examination, including the nature and extent of all the hearing losses on audiogram.
The Medical Assessor recorded a non-occupational hearing impairment of 29.9% (at paragraph 11(a)(i) of the MAC).
The Appeal Panel has referred above to the Medical Assessor’s discussion of his audiogram. The Appeal Panel has concluded that it was open to the Medical Assessor to find that the hearing losses below 2000Hz were non-work related. Clearly, his audiogram was the medical evidence accepted or preferred by the Medical Assessor in connection with the medical assessment of the matter.
The audiogram itself gave a reliable indication of the extent of the contribution of the non-work-related condition to the overall BHL. It is not correct to simply rely on the provisions of s 323(2) of the 1998 Act, as the deduction is neither difficult nor costly to determine and would be at odds with the medical evidence accepted or preferred by the Medical Assessor in connection with the medical assessment of the matter.
The Medical Assessor’s interpretation of his audiogram justified the deduction made. The Medical Assessor correctly applied s 323 of the 1998 Act.
The MAC has reproduced (at paragraph 11(c)) the template that provides for a deductible proportion of one-tenth, which includes the words “The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth (can only be used when not at odds with available evidence)”.
However, the Medical Assessor has stated that there is no deductible proportion. That is because he had already taken into account the appellant’s non-occupational hearing impairment. A deduction of one-tenth would be at odds with the available evidence, and therefore impermissible, pursuant to s 323(2) of the 1998 Act.
Ground three of the appeal is dismissed.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 April 2024 should be confirmed.
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