Qantas Airways Limited v Watson
[2024] NSWPICMP 29
•22 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Limited v Watson [2024] NSWPICMP 29 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Diane Watson |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Joseph Scoppa |
| MEDICAL ASSESSOR: | Brian J Williams |
| DATE OF DECISION: | 22 January 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for loss of hearing due to noise exposure and barotrauma; parties agreed error in assessment of loss of hearing due to noise exposure outside NSW; Medical Assessor (MA) included assessment of loss due to barotrauma with assessment of loss due to noise exposure; MA erred in assessing impairment as a result of barotrauma, and in combining assessments due to barotrauma and sensorineural deafness due to exposure to industrial; Held – Medical Assessment Certificate revoked. |
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 Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 October 2023.
· 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 respondent), Diane Watson, (Ms Watson) sustained an injury in the course of her employment with the appellant as along haul flight attendant.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) claiming 12% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of loss of hearing due to the rapid descent on 2 March 2004 causing barotrauma to the right ear and exposure to loud noise during the course of her employment with the appellant from 1987 to 2021. The injury was deemed to have occurred on 2 March 2004.
The Medical Assessor examined the appellant on 22 September 2023. The Medical Assessor assessed total BHI as 30.2%, added 1% for severe tinnitus which gave an adjusted BHI of 31.2%. The resultant total BHI of 31.2 % was converted to 16% WPI (Table 9.1 of the Guidelines). Therefore, the total WPI assessed was 16% as a result of the injury deemed to have occurred on 2 March 2004.
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 request that Ms Watson be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Watson to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
The appellant’s submissions included the following:
(a) Ground A – the Medical Assessor assessed loss of hearing due to exposure to noise outside of NSW. By referral amended on 19 September 2023, the Medical Assessor was requested to assess WPI in relation to Ms Watson’s ‘hearing’ for an injury on ‘2 March 2004 (deemed)’.
(b) Ms Watson worked in Queensland from 2005 to 2021. It was apparent that the Medical Assessor did not understand that loss of hearing due to exposure to noise in Queensland was not to be assessed as part of an injury deemed to have been sustained on 2 March 2004.
(c) The amended referral included the appellant’s Application to Admit Late Documents (AALD) filed on 19 September 2023. The documents in the AALD noted that Ms Watson was assessed as having 8% binaural sensorineural hearing loss as a result of her noisy employment in the State of Queensland and was compensated accordingly. Such hearing loss was not a result of an injury for the purposes of ss 4 and 17 of the 1987 Act as it was not a loss due to employment in NSW.
(d) At a minimum, and consistent with the Supreme Court decision of Wentworth Community Housing Ltd v Brennan [2019] NSWSC 152 there was an error on the face of the record as the Medical Assessor did not have regard to the evidence placed before him. The Medical Assessor’s failure to consider the evidence in the AALD and Ms Watson’s statement and the Medical Assessor’s assessment including hearing loss due to exposure to noise from 2005 to 2021 in Queensland constituted a demonstrable error.
(e) Ground B – demonstrable error – the Medical Assessor assessed impairment as a result of a barotrauma injury on 1 March 2004. The Medical Assessor was required to assess WPI as a result of an injury deemed to have been sustained on 2 March 2004.
(f) The Medical Assessor was not asked to assess impairment as a result of an injury on 1 March 2004. The Medical Assessor has demonstrably erred in doing so.
(g) The relevant deeming provision is at s 17 of the 1987 Act. Section 17 relates to an injury that is a ‘loss… of hearing which is of such a nature as to be caused by a gradual process’.
(h) Ms Watson’s loss of hearing as a result of barotrauma was not loss of hearing “caused by a gradual process”. The loss of hearing due to barotrauma was a personal injury, sustained on 1 March 2004.The Medical Assessor made a demonstrable error in assessing WPI due to barotrauma as being loss of hearing due to an injury deemed to have been sustained on 2 March 2004.
(i) Ground C – demonstrable error – the Medical Assessor erred in combining impairments for barotrauma and sensorineural deafness. Section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that impairments can only be combined if they result from the same injury or arise out of the same incident. Even if the Medical Assessor asked to assess WPI as a result of barotrauma, which was disputed, the impairments resulting from that injury and from the referred injury may not be combined.
(j) Binaural sensorineural deafness is not the same injury as right sided mixed deafness as a result of barotrauma. This was apparent from the diagnoses of the Medical Assessor at pages 3 and 4 the MAC. Ms Watson’s sensorineural deafness due to exposure to noise did not arise out of the barotrauma incident.
(k) At a minimum, the Medical Assessor failed to explain the actual path of reasoning for combining impairments (Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 at [55]).
(l) Summary – the Medical Assessor had demonstrably erred in assessing impairment as a result of Ms Watson’s barotrauma, in combining assessments due to barotrauma and sensorineural deafness due to exposure to industrial noise, and in assessing impairment found to be as a result of exposure to noise in employment in NSW as being as a result of such the referred injury.
(m) The MAC should be set aside.
(n) The Medical Appeal Panel should issue a new MAC taking into consideration the matters raised by the appellant, and no further audiometric assessment of Ms Watson is required for this purpose
Ms Watson’s submissions included the following:
(a) Ground A – demonstrable error – the Medical Assessor assessed loss of hearing due to exposure to noise outside of NSW. Ms Watson agreed that she was in fact employed by Qantas in Queensland from 21 March 2005 until she ceased working with the Qantas on 28 February 2021.
(b) Ms Watson confirmed that she had been paid compensation for the loss of hearing she sustained during the course of her employment with appellant in Queensland. Ms Watson agreed that a deduction should be made from the total hearing to take into account the hearing loss sustained during the course of the employment in Queensland.
(c) Ground B – demonstrable error – the Medical Assessor assessed impairment as a result of a barotrauma injury on 1 March 2004. The Medical Assessor did not make a demonstrable error in assessing impairment as a result of a barotrauma injury that occurred on 1 March 2004.
(d) The Medical Assessor acknowledged that the relevant date of injury is 1 March 2004, however, as a deemed date. When considering whether any proportion of the impairment was due to previous injury or pre-existing condition or abnormality the Medical Assessor acknowledged that part of the hearing is a due to previous barotrauma caused by her occupation as a flight attendant.
(e) Further, the Medical Assessor stated as follows:
“The loss of hearing in the left ear is as a result of the exposure to unacceptable noise levels. I have equalised the loss of hearing in the right ear in the high frequencies to that of the left as the loss of hearing in the left was caused by exposure to unacceptable noise levels.”
(f) It was on this basis that the Medical Assessor made it very clear that he had in fact only taken into account only the loss of hearing due to exposure to noise and had excluded the loss of hearing due to barotrauma. Therefore, ground B had not been made out and the Medical Assessor had not fallen into error.
(g) Ground C – demonstrable error – the Medical Assessor erred in combining impairments for barotrauma and sensorineural deafness. The Medical Assessor had not fallen into error as and had not combined the impairment of barotrauma and sensorineural deafness. This was made clear as noted above.
(h) Ms Watson agreed with the appellant that the Medical Assessor had fallen into error in relation to considering the entirety of her employment with Qantas when assessing her loss of hearing A.
(i) Ms Watson did not agree that grounds B and C had been made out.
(j) The MAC of the Medical Assessor dated 5 October 2023 should be revoked in accordance with the submission above.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the Workplace Injury Management and Workers Compensation Act 1987 (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.
Section 327(2) of the 1987 Act 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) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that “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.
Ground A – assessment of loss of hearing due to exposure to noise outside of NSW
The appellant noted that Ms Watson had worked in Queensland from 2005 to 2021 and submitted that the Medical Assessor did not understand that loss of hearing due to exposure to noise in Queensland was not to be assessed as part of an injury deemed to have been sustained on 2 March 2004.
The amended referral dated 19 September 2023 provided that the date of injury was 2 March 2004 (deemed) and the body part referred was “Hearing”. The Application to Resolve a Dispute (ARD) under the heading “Injury Detail – 2/03/2004” described the injury as a disease with a deemed date of injury of 2/03/2004. The “injury description/cause of injury or death” was described as follows: “Our client sustained an injury to her hearing due to the rapid decsent on 02.03.2004 causing barotrauma to the right ear and exposure to loud noise during the course of her emplpyment with Qantas from 1987 to 2021.”
Ms Watson, in her statement dated 4 August 2023, said that she was based in Sydney from 20 November 1987 to 21 March 2005 and then transferred to Brisbane and stayed working there until she took redundancy on 28 February 2021.
The amended referral included the appellant’s AALD filed on 19 September 2023. The documents attached to the AALD established that Ms Watson was assessed as having 8% binaural sensorineural hearing loss as a result of her noisy employment in the State of Queensland and was compensated accordingly.
The appellant submitted that the hearing loss as a result of noisy employment in Queensland was not a result of an injury for the purposes of ss 4 and 17 of the 1987 Act as it was not a loss due to employment in NSW. The appellant argued that there was an error on the face of the record as the Medical Assessor had not had regard to the evidence placed before him and contained in the AALD, and also Ms Watson’s statement. Further, the appellant submitted that the Medical Assessor’s assessment including hearing loss due to exposure to noise from 2005 to 2021 in Queensland constituted a demonstrable error.
In her submissions, Ms Watson agreed that she was in fact employed by Qantas in Queensland from 21 March 2005 until she ceased working with the Qantas on 28 February 2021. Ms Watson confirmed that she had been paid compensation for the loss of hearing she sustained during the course of her employment with appellant in Queensland.
Ms Watson agreed that a deduction should be made from the total hearing to take into account the hearing loss sustained during the course of the employment in Queensland.
The Appeal Panel was satisfied that the Medical Assessor made a demonstrable error in including in his assessment hearing loss due to exposure to noise from 2005 to 2021 in Queensland.
The Appeal Panel noted that an audiogram had been carried out on 20 April 2004 by J. Harrington, audiologist, of the Neurosensory Unit of Queensland Hearing Aids and Audiological Services. From this audiogram the level of hearing loss due to exposure to noise can be calculated as at 20 April 2004, that is, less than two months after the deemed date of injury.
Ground B – the Medical Assessor assessed impairment as a result of a barotrauma injury on 1 March 2004
The appellant submitted that the Medical Assessor was required to assess WPI as a result of an injury deemed to have been sustained on 2 March 2004 and was not asked to assess impairment as a result of an injury on 1 March 2004. The Medical Assessor made a demonstrable error in assessing impairment as a result of an injury on 1 March 2004.
Section 17 of the 1987 Act provides:
“(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect-
(a) for the purposes of this Act, the injury shall be deemed to have happened-
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due - at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury - on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…”
The appellant submitted that Ms Watson’s loss of hearing as a result of barotrauma was not loss of hearing “caused by a gradual process” but a loss of hearing due a personal injury, sustained on 1 March 2004. The appellant argued that the Medical Assessor made a demonstrable error in assessing WPI due to barotrauma as being loss of hearing due to an injury deemed to have been sustained on 2 March 2004.
In the MAC , the Medical Assessor noted that the date of injury was 2 March 2004 (deemed). Under “History relating to the injury” the Medical Assessor described Ms Watson being involved in a rapid descent on a flight from London to Bangkok and suffering acute pain in the right ear due to the descent.
Under “Work history including previous work history if relevant” the Medical Assessor wrote:
“I note Ms Watson has been employed by Qantas from 1987 as a Long Haul Flight Attendant. She ceased employment on 28 February 2021. She describes being exposed to noise in the aircraft and on the tarmac. The noise on the tarmac was greater prior to when air bridges were introduced”.
Under “Summary of injuries and diagnoses” the Medical Assessor wrote: “In my opinion, Ms Watson has sustained barotrauma to the right ear leading to a conduction deafness in this ear”.
In considering whether any proportion of the impairment was due to previous injury or pre-existing condition or abnormality the Medical Assessor wrote:
“Ms Watson’s loss of hearing in the right ear is a result of previous barotrauma caused by her occupation as a Flight Attendant. The loss of hearing in the left ear is as a result of exposure to unacceptable noise levels. I have equalised the loss of hearing in the right ear in the high frequencies to that of the left as the loss of hearing in the left ear was caused by exposure to unacceptable noise levels”.
Ms Watson submitted that the Medical Assessor made it very clear that he has in fact only taken into account noise induced hearing loss and has excluded the loss of hearing due to barotrauma.
The Appeal Panel did not accept Ms Weston’s submission as what the Medical Assessor did was to calculate loss of hearing due to exposure to noise by equalising the loss of hearing in the right ear in the high frequencies to that of the left ear, but he still included the loss of hearing due to barotrauma in his assessment of hearing loss.
The Appeal Panel considered that the Medical Assessor erred in including the loss of hearing due to barotrauma in his total assessment of hearing loss. The referral to the Medical Assessor provided a deemed date of injury, namely, 2 March 2004. Loss of hearing due to barotrauma was not a loss of hearing caused by a gradual process, it was a loss of hearing caused by a traumatic event on a particular date, that date being on or about 2 March 2004.
Table 4 attached to the MAC is headed “Assessment of industrial deafness in accordance with Chapter 9 of the NSW workers compensation guidelines for the evaluation of permanent impairment and 1988 NAL Tables for injuries received after 1 January 2002”. The Appeal Panel noted that this table should not be used for both assessment of industrial deafness and acute injury involving traumatic hearing loss.
Ground C – the Medical Assessor erred in combining impairments for barotrauma and sensorineural deafness
The appellant submitted that binaural sensorineural deafness is not the same injury as right sided mixed deafness as a result of barotrauma and Ms Watson’s sensorineural deafness due to exposure to noise did not arise out of the barotrauma incident. The appellant submitted that even if the Medical Assessor asked to assess WPI as a result of barotrauma, which was disputed, the impairments resulting from that injury and from the referred injury may not be combined.
Section 322 of the 1998 Act provides that impairments can only be combined if they result from the same injury or arise out of the same incident. However, the question of whether impairments can be combined is a matter for a member of the Commission to decide not the Appeal Panel.
The appellant submitted that the Medical Assessor failed to explain the actual path of reasoning for combining impairments from binaural sensorineural deafness and right sided mixed deafness as a result of barotrauma. The Appeal Panel noted that both the ARD and amended referral did not clearly identify that there were two causes of the hearing loss, firstly, conductive deafness as a result of the barotrauma, which was a frank injury, and secondly, sensorineural deafness due to noise exposure in employment.
The Appeal Panel, having found error, proceeded to make an assessment of both impairments from binaural sensorineural deafness and right sided mixed deafness as a result of barotrauma.
The Appeal Panel considered that the assessment of occupational noise induced binaural sensorineural deafness could be made on the basis of the audiogram results on 20 April 2004 by J. Harrington, audiologist, of the Neurosensory Unit of Queensland Hearing Aids and Audiological Services. From this audiogram the level of hearing loss due to exposure to noise can be calculated as at 20 April 2004, that is, less than two months after the deemed date of injury. If impairment is calculated based on this audiogram, there is no need to make any deduction for loss of hearing due to exposure to noise in Queensland as Ms Watson did not commence to work in Queensland until 21 March 2005. The assessment of binaural sensorineural deafness was based on the hearing losses in the left ear and an equivalent amount in the right ear. All six frequencies from 500 to 4000Hz were assessed in calculating the losses which involved the the interpolation of the 1500 and 3000 frequencies.
The assessment of right sided mixed deafness as a result of barotrauma can be made on the basis of the audiogram carried out by the Medical Assessor in his examination on 22 September 2023. This assessment was calculated by assessing the right hearing losses that were in excess of the losses in the left ear and adding 1% for severe tinnitus. The left sensorineural hearing losses and an equal amount in the right ear are not related to the right ear barotrauma.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5804/23 |
Applicant: | Diane Watson |
Respondent: | Qantas Airways Limited |
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 Medical Assessor Kenneth Howison and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table 2 - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Hearing right ear barotrauma | About | Chapter 9 | Chapter 11 | 4% | 0 | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 4% | |||||
Table 4 – calculation of whole person impairment (WPI) for industrial deafness as set out in the table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:
| Notional date of injury | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI |
| 2/3/2004 | 500 | 15 10 | 20 10 | 0.4 | 0.0 |
| 1000 | 15 10 | 20 10 | 0.5 | 0.0 | |
| 1500 Interpolated | 20 15 | 20 15 | 0.6 | 0.6 | |
| 2000 | 20 15 | 20 15 | 0.5 | 0.5 | |
| 3000 Interpolated | 25 20 | 25 20 | 0.7 | 0.7 | |
| 4000 | 25 20 | 25 20 | 0.7 | 0.3 | |
| 6000 | |||||
| 8000 | |||||
| TOTAL % BHI: 3.2% | |||||
| Less Pre-existing non-related loss: 1.1% | |||||
| Less Presbyacusis correction: 0.0 | |||||
| Add % of severe tinnitus: 0.0% | |||||
| Adjusted total % BHI: 2.1% | |||||
| Resultant total BHI of 2.1% % = 0% WPI (Table 9.1) | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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