Qantas Airways Limited v Cura
[2024] NSWPICMP 225
•16 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Limited v Cura [2024] NSWPICMP 225 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Hasim Cura |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Brian Williams |
| MEDICAL ASSESSOR: | Robert Payten |
| DATE OF DECISION: | 16 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Hearing loss due to occupational noise exposure; employer appealed on basis of the inclusion of all losses at all frequencies and the loading for severe tinnitus; the Medical Assessor (MA) has used his clinical judgment taking into account the medical history and physical examination and his audiogram to find the hearing losses at all frequencies are occupational noise induced hearing losses; he refers to the other medical opinions but notes the audiograms of the IMEs were very different to the one he obtained on the day of assessment; he gives reasons why he prefers his own audiogram; his reasoning is not inadequate such as to constitute error; when the Medical Assessment Certificate (MAC) is read as a whole, the path of reasoning is clear and the decision to assess occupational noise induced hearing loss using all frequencies was open to the MA based on his clinical judgment noting the nature and extent of the occupational noise exposure over 33 years and the result of the audiogram taken on the day of assessment; tinnitus allowance of 4% also open to the MA and disclosed no error; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 November 2023 Qantas Airways Limited (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, who issued a Medical Assessment Certificate (MAC) on 5 October 2023.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, 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 (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).
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 did not seek that the worker be re-examined by a Medical Assessor who was also a member of the Appeal panel. As a result of the Appeals Panel’s preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no jurisdiction to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 20 August 2020
· Body parts/systems referred: Hearing Loss
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB HL
Air Bone
Total % BHI
Occupational % BHI
20.8.20
500
25 20
1.4
25 25
1.4
1.4
1.4
1000
25 25
1.8
25 25
1.8
1.8
1.8
1500
30 25
2.8
30 30
2.8
2.8
2.8
2000
35 30
3.4
30 30
2.1
2.5
2.5
3000
45 40
4.1
55 55
5.6
4.3
4.3
4000
55 45
5.2
70 60
7.5
5.4
5.4
18.7
21.2
18.2
TOTAL % BHI: 18.2
Less Pre-existing non-related loss: 0
Less Presbyacusis correction: 1.7
Add % of severe tinnitus: 4.0
Adjusted total % BHI: 20.5
Resultant total BHI of 20.5% = 11% whole person impairment (Table 9.1)
The employer appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable errors which included the following:
(a) insufficient reasons why the losses at all frequencies were included.
(b) In allowing 4% whole person impairment (WPI) for severe tinnitus which was not adequately explained in circumstances where both the independent medical experts (IME) qualified by each of the parties assessed 1% for severe tinnitus.
(c) Noting that Hasim Cura (the respondent worker/respondent) informed the Medical Assessor that he went to see his general practitioner (GP) about his tinnitus, the Medical Assessor should have called for the clinical records of the GP.
In summary, the respondent submitted there is no error, and no assessment on the basis of incorrect criteria and the final assessment of 11% WPI should be confirmed.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: During his time working for the respondent he was exposed to loud noise with the potential to damage hearing. He has had difficulty hearing for about 10 years. He has had no treatment.
·Present treatment: Nil.
·Present symptoms: He has difficulty hearing and understanding people including family, friends and other persons and has to ask them to repeat themselves. The ears appear about equally affected. He needs the television turned up at home about which his wife complains. The hearing is worse in group conversations and background noise. He also has noises in the ears (tinnitus) which is constantly present and which irritates him and which interferes with sleep. He saw his local doctor about this but was told that nothing could be done for it. From the description given I consider it to be severe tinnitus.
·Details of any previous or subsequent accidents, injuries or condition: There are no previous or subsequent accidents, injuries or conditions.
·General health: He suffers from osteoarthritis but other than this he is in good health 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: He worked for the respondent as an aircraft tug driver for 33 years from 1987 until 2020. His work exposed him to loud noise from the tug engine for most of his working day of 8 hours. The noise from this source was such that he would have to shout for someone with normal hearing to understand him at a distance of 1 metre which suggests strongly that the noise had the potential to damage hearing in less than 8 hours. There was also constant noise from radios. In particular there was aircraft engine noise both generally on the tarmac and in particular when he was moving aircraft. Each time he moved an aeroplane its engines would be running for perhaps 10 minutes and this would be for up to 10 times a day. He worked 8 hours a day, 5 days a week. He wore hearing protection. He has not worked since leaving the respondent.
Prior to working for the respondent he was a truck driver in his native Montenegro for about 3 years. I questioned him closely about the noise this would have exposed him to; he said that he could have a conversation with someone with normal hearing in the truck cabin without raising his voice which suggests that the noise was probably insufficient to damage hearing.
·Social activities/ADL: Apart from the effects of the hearing loss as described under ‘present symptoms’ on activities of daily living, the worker avoids noisy or crowded places because of increased difficulty understanding speech in such circumstances.
The worker has no noisy pastimes but did do 15 months of National service with the army of the former Yugoslavia. He was a truck driver but again his description of the noise indicated that it was insufficient to damage hearing. He only went to the rifle range once for basic training and on this occasion fired about 5 rounds from an AK 47 rifle with hearing protection. Compared with the long occupational noise exposure, this military noise exposure is trivial and no deduction is required for it.”
The Medical Assessor recorded his findings on physical examination 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.
I was able to converse satisfactorily with the worker with a slightly raised speaking voice at a distance of about two metres.”
An audiogram was conducted on the day of examination and the Medical Assessor noted 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, Ms 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 sensori-neural deafness. The total binaural hearing impairment (BHI) derived from this audiogram is 18.2%. A copy of the audiogram accompanies this report. All of this deafness is occupational deafness (‘industrial deafness’).”
The Medical Assessor summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses: Bilateral sensori-neural deafness due to occupational noise exposure (industrial deafness).
consistency of presentation: The history and examination are consistent with a diagnosis of industrial deafness as is the audiogram, the profile of which is reasonably consistent with the diagnosis. An accurate audiogram was easily obtained.”
The Medical Assessor explained his impairment assessment as follows:
“THE FACTS ON WHICH THE ASSESSMENT IS BASED
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 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 11% WPI.
In making that assessment I have taken account of the following matters:-
As stated above the history and examination are consistent with a diagnosis of occupational noise exposure as is the audiogram. I have therefore accepted all of the deafness as being noise induced occupational hearing loss (industrial deafness). So there is 18.2% BHI of industrial deafness before mandatory deduction for presbycusis and 16.5% after such deduction. I believe that his tinnitus is very severe and in particular because he sought advice from his doctor in its regard, I have made an allowance of 4.0% for this.
The above give a resultant total BHI of 20.5% which equals 11% whole person impairment. Calculations involved in reaching my conclusions are contained in the accompanying table.”
The Medical Assessor made brief comment on the other medical opinions before him as follows:
“Both Dr Raj and Dr Howison have audiograms considerably different to mine. I have confidence in my audiogram and prefer it to theirs because I am familiar with the expertise of my audiologist and the quality and maintenance of my equipment.”
The appellant submitted on appeal that the medical assessor failed to provide sufficient reasoning for his consideration that hearing loss at all frequencies have been affected by occupational noise exposure.
The appellant submitted that it accepts the decision to include losses at lower frequencies in the assessment is a matter for clinical judgment of the medical assessor based on the extent and duration of noise exposure and the extent of the losses in the lower frequencies compared to the extent of the losses in the higher frequencies. However, the appellant submitted that the medical assessor is nevertheless required to provide the path of reasoning for exercising this judgment and he did not do so here.
The appellant went onto compare the findings of the IMEs whose reports were in evidence namely Dr Raj Thandavan who was qualified on behalf of worker and Dr Howison who was qualified on behalf of Qantas. The appellant submitted as follows:
“Dr Raj for the respondent did not include the frequencies for 500 1000Hzs. Dr Howison did not include 1500 Hzs there was a greater loss than at the higher frequencies which is inconsistent with industrial deafness. The MA also found a greater loss at 1500 Hz than at 2000Hz although it is less significant. The MA has not addressed this anomaly that has been highlighted by Dr Howison”.
The Appeal Panel finds the Medical Assessor does address this anomaly when he states “both Dr Raj and Dr Howison have audiograms considerably different to mine.” Simply put the Appeal Panel finds that the anomaly described by Dr Howison, that is the left hearing threshold levels on his audiogram at 1500 Hz are greater than the left hearing threshold levels at 2000 Hz, is not present in the audiogram of the Medical Assessor. And the Appeal Panel finds that on the audiogram of the Medical Assessor the hearing threshold levels below 2000 Hz are not greater than the hearing threshold levels above 2000 Hz. The Appeal Panel is satisfied that in this matter it was open to the Medical Assessor to accept all the frequencies that he did.
If the appellant’s submission is that the medical assessor found a greater loss at 1500 Hz than he did at 2000 Hz using the Occupational % BHI and that this would not be consistent with industrial deafness, then this is misconceived. This is because it is the profile of the hearing threshold losses in decibels on the audiogram per se rather than the % Binaural hearing loss calculated using the 1988 National Acoustic Laboratories (NAL)Tables that are used to determine whether the hearing losses are consistent with noise induced occupational hearing loss.
As per the audiogram conducted on the day of examination by the Medical Assessor, the hearing threshold losses in decibel at frequencies below 2000 Hz are less than the hearing threshold losses in decibels at frequencies above 2000 Hz. And accordingly, they do not show an anomaly as suggested by the appellant. This is evident from the audiogram bilaterally as follows:
Frequency Hz
Left dB
Air Bone
Right dB
Air Bone
500
25 20
25 25
1000
25 25
25 25
1500
30 25
30 30
2000
35 30
30 30
3000
45 40
55 55
4000
55 45
70 60
As can be seen in the table above (consistent with the audiogram conducted on the day of examination), the decibel levels are getting progressively worse from 500 Hz to 4000 Hz, consistent with industrial deafness.
The MAC must be read as a whole. The Medical Assessor has clearly stated that he prefers his own audiogram taken on the day of assessment. He states:
“Both Dr Raj and Dr Howison have audiograms considerably different to mine. I have confidence in my audiogram and prefer it to theirs because I am familiar with the expertise of my audiologist and the quality and maintenance of my equipment.”
The MA stated earlier in the MAC:
“The history and examination are consistent with a diagnosis of industrial deafness as is the audiogram, the profile of which is reasonably consistent with the diagnosis. An accurate audiogram was easily obtained.”
The Medical Assessor has noted that the history of “significant noise exposure” over 33 years in the appellant’s employ and he has taken a detailed history of the duration and extent of that exposure as follows:
“He worked for the respondent as an aircraft tug driver for 33 years from 1987 until 2020. His work exposed him to loud noise from the tug engine for most of his working day of 8 hours. The noise from this source was such that he would have to shout for someone with normal hearing to understand him at a distance of 1 metre which suggests strongly that the noise had the potential to damage hearing in less than 8 hours. There was also constant noise from radios. In particular there was aircraft engine noise both generally on the tarmac and in particular when he was moving aircraft. Each time he moved an aeroplane its engines would be running for perhaps 10 minutes and this would be for up to 10 times a day. He worked 8 hours a day, 5 days a week. He wore hearing protection. He has not worked since leaving the respondent.”
The Medical Assessor has used his clinical judgment taking into account the medical history and physical examination and his audiogram to find the hearing losses at all frequencies are occupational noise induced hearing losses. He refers to the other medical opinions but notes the audiograms of the IMEs were very different to the one he obtained on the day of assessment. He gives reasons why he prefers his own audiogram. His reasoning is not inadequate such as to constitute error. When the MAC is read as a whole, the path of reasoning is clear and the decision to assess occupational noise induced hearing loss using all frequencies was open to the Medical Assessor based on his clinical judgment noting the nature and extent of the occupational noise exposure over 33 years and the result of the audiogram taken on the day of assessment.
Turning now to the issue of the assessment by the Medical Assessor that an allowance should be made for severe tinnitus of 4%.
The appellant concedes that the Guidelines”
“…do not provide much assistance in determining what constitutes severe tinnitus, other than that it should be based on the medical specialist assessment but notes that the relevant assessment is to a maximum of 5%WPI and submits that sufficient reasoning is required to assign 4% in context”.
The Guidelines provide at paragraph 9.11 as follows:
“9.11 Binaural hearing impairment and severe tinnitus: Up to 5 per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury:
i.after presbyacusis correction, if applicable
ii.before determining whole person impairment (WPI).
Assessment of severe tinnitus is based on a medical specialist’s assessment.”
What this means is that the assessment of severe tinnitus as a result of the work is entirely within the province of the Medical Assessor. As per the guidelines up to 5% can be assessed by the medical assessor based on the Medical Assessor’s clinical judgment on the day of assessment. There is no other guidance or criteria to be followed laid out in the guidelines.
There is no dispute that the worker suffers severe tinnitus. Both IMEs qualified on behalf of the parties assessed the worker to suffer from severe tinnitus and they each assessed 1%. The medical assessor gave 4%. The 1% allocated by each of the IMEs and the 4% allocated by the medical assessor are not WPI percentages. The guidelines as set out above in
9.11 allow for a range of up to 5% to be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury and this takes place before the determining the WPI. The maximum is not 5% WPI as submitted by the appellant rather the maximum is 5% before conversion to WPI. When the appellant submits an additional 4% WPI has been allocated by the medical assessor for severe tinnitus, this submission is misconceived. Four percent has been assessed by the medical assessor prior to WPI conversion. The Appeal Panel finds the Medical Assessor applied the guidelines correctly.The appellant says that 4% was allocated as compared to 1% by each of the IMESs whose reports were in evidence before him and that this allocation amounted to error and it was inadequately explained particularly as to why it differed from the IMEs allocation of 1% and this was in error.
Moreover the appellant says when the medical assessor relied on a history that the worker gave him that he saw the GP for his tinnitus because it was bothering him when this was not contained in his statement or reported to the IMEs, the Medical Assessor should have properly called for the clinical records of the GP.
It is noted that the history taken includes the report by the worker to the Medical Assessor that he saw his GP about the tinnitus because it was bothering him and the Medical Assessor notes he took this into particular account. The appellant submitted that in circumstances where this history was not recorded anywhere else in the material before him, the Medical Assessor should have called for the clinical records of the GP. Whilst calling for clinical records is a step always open to a Medical Assessor, it is not a mandatory step and the Appeal Panel can discern no error in the Medical Assessor failing to do so in the circumstances of this case where the respondent could clearly recount the family doctors reply.
The Appeal Panel considers that the assessment of severe tinnitus (from which is not in dispute that the worker suffers) at 4% was adequately reasoned when the MAC is read as a whole noting the history taken as follows:
“He also has noises in the ears (tinnitus) which is constantly present and which irritates him and which interferes with sleep. He saw his local doctor about this but was told that nothing could be done for it. From the description given I consider it to be severe tinnitus.”
The appellant refers to the evidence given in the respondent statement regarding tinnitus that “in his statement (page 1 of the Application to Resolve a Dispute) the respondent stated that he struggles to focus on tasks due to tinnitus symptoms, this was the history taken by both IME’s.” The Appeal Panel notes the respondent’s statement in which he in fact gave evidence as follows:
“…inability to concentrate and retain attention due to tinnitus when I am alone and in quiet areas.
Difficulty focusing on tasks due to the continuous background noise and occasional high pitched noise caused by the tinnitus.”
The Medical Assessor assessment that the worker suffered from very serve tinnitus leading to an allowance of 4% was entirely open to the Medical Assessor using his clinical expertise on the day of assessment and was in accordance with the Guidelines which simply provide that it is matter for the medical assessor’s assessment and the Appeal Panel can discern no error in this regard.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 October 2023 should be confirmed.
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