Reghelin v Kalmar Equipment (Australia) Pty Ltd

[2023] NSWPICMP 575

DETERMINATION OF APPEAL PANEL
CITATION:	Reghelin v Kalmar Equipment (Australia) Pty Ltd [2023] NSWPICMP 575
APPELLANT:	Luigi Reghelin
RESPONDENT:	Kalmar Equipment (Australia) Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Brian Williams
MEDICAL ASSESSOR:	Robert Payten
DATE OF DECISION:	10 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Hearing loss due to occupational noise exposure; worker appealed assessment on basis that the Medical Assessor erroneously deducted loss of hearing at 3000Hz and failed to adequately explain why losses below 3000HZ were not included in the assessment; Appeal Panel found error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 21 October 2022 Mr Luigi Reghelin (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Paul Niall, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 September 2022.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found error and considered a re-examination was necessary.

EVIDENCE

Documentary evidence

1. 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.

Further medical examination

1. Dr Brain Williams of the Appeal Panel conducted an examination of the worker on 29 April 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor which he records in his MAC as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   The nature and extent of loss of hearing.”

4. The Medical Assessor issued a MAC as follows:

Injury deemed to have happened on: 15/12/2021	Frequency (Hz)	Left dB HL Air Bone	Right dB HL Air Bone	Total % BHI	Occupational % BHI
500	65	45 55
1000	70	45 60	8.9	0
1500	65	55 70	11.3	0
2000	60	60 70+	11.5	0
3000	55	55 75	9.4	0
4000	60	60 70	5.6	5.6
6000	65	65	6.0	6.0
8000	65	60
TOTAL % BHI 52.7 (most sensitive responses in my testing)
Less Pre-existing non-related loss (41.1%) [52.7 – 41.1 = 11.6]
Less Presbyacusis correction (1.3%)
Add % for severe tinnitus 3
Adjusted total % BHI 13.3
Resultant total BHI of 13.3% = 7% whole person impairment (Table 9.1)

1. The worker appealed.

2. In summary, the appellant submitted on appeal that the Medical Assessor made demonstrable errors which included the following:

   (a)     making a deduction for the loss of hearing at 3000 Hz from the total loss due to noise, and

   (b)    by failing to adequately explain his reasoning in deciding not to include the losses below 3000 Hz in the impairment assessment.

3. The respondent employer Kalmar Equipment (Australia) Pty Ltd (the respondent) acknowledged that the Medical Assessor did not include the loss at 3000 Hz which was contradictory to another statement made in the MAC by the Medical Assessor. The respondent submitted that the Medical Assessor made a demonstrable error by including the loss at 6000 Hz. Otherwise, the respondent submitted the MAC was adequately reasoned.

4. The Appeal Panel was satisfied that error had been made by the Medical Assessor and in these circumstances a re-examination was considered necessary and Dr Brian Williams, a Medical Assessor on the Appeal Panel was appointed to conduct the examination. Dr Brian Williams reported to the Appeal Panel as follows:

Applicant worker: Luigi REGHELIN

1.     DETAILS OF MATTERS REFERRED FOR ASSESSMENT

The following matters have been referred for assessment (s 319 of the 1998 Act):

·Date of injury:15.11.21

·Body parts/systems referred: Hearing Loss

·Method of Assessment: Whole Person Impairment

2.     WORKER’S DETAILS INCLUDING

·Date of examination: 4.4.23

·Date of birth and age at examination: 3.11.1959; 63 years of age

·Hand dominance:     Right Handed

·Details of who attended the examination: Mr Reghelin was unaccompanied.

·Date of injury: 15.11.21

·Employer: Kalmar Equipment (Australia) Pty Ltd

·Occupation: Mechanical Fitter in Maintenance

3.     HISTORY RELATING TO THE INJURY

·Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

The history I obtained from Mr Reghelin is as follows.

Hearing Loss

He gave a history of sudden bilateral hearing loss 6 months to 1 year before he retired in 2020. He said the left is worse than the right. He said without hearing aids he has difficulty hearing conversation, needs to increase the volume of the television above others and has difficulty hearing in background noise. He said he obtained binaural hearing aids last year and said they help his hearing. His statement state MR and CT scan of ears “were OK”.

Tinnitus

He gave a history of tinnitus but said he is not sure when it started, but about 4 years ago. He said it sounds like whistles and waves. He said he can hear up to 5 sounds, eg a fan. He said it is non pulsatile. He said it is constant and bilateral. He said it interferes with his daily activities during the day because it interferes with his hearing. He said it interferes with sleep induction at night for 1.5 hours every night. He said hearing aids do help his tinnitus. He said he has discussed his tinnitus with his GP and Dr Farrelly, and was told to avoid loud noise.              

·present treatment: Please see above

·present symptoms: Please see above

·details of any previous or subsequent accidents, injuries or condition:

PAST HISTORY

He gave no history of hereditary deafness. He gave no history of direct ear or head trauma or blast injury. He gave no history of otitis media or ototoxic exposure. He gave a history of Military Service. He gave no history of recreational noise exposure. He gave no history of otalgia (ear pain) or otorrhoea (ear discharge). He gave no history of ear surgery.

He gave no history of heart disease, stroke, diabetes, thyroid disease, raised cholesterol, hypertension, meningitis, mumps, measles, allergic rhinitis or asthma. He gave no history of motor vehicle accidents. He said he is a non smoker.

He said he is on no medications.

Prior Compensation Claims for hearing loss: he said no.

·work history including previous work history if relevant:

OCCUPATIONAL HISTORY

·Kalmar Equipment (Australia) Pty Ltd 2008-November 2021 (13 years). He said he was exposed to the noise of workshop noise including service and repair of straddle machines, with rattle guns, compressors, straddle machine noise, hammering steel, dropping steel, grinders and pneumatic tools. He said his shift was 8-12 hours per day 6-7 days per week. He said hearing protection was worn when it was safe to do so.

·CSR 1986-2008 (22 years) as Maintenance Fitter. He said he was exposed to the noise of brick workshop noise including brick making machinery and workshop lathes, milling machines, pneumatic tools, air compressors and grinders. He said his shift was 8-10 hours per day 5-6 days per week. He said he had to raise his voice and sometimes shout to have a conversation at 1 metre. He said hearing protection was worn when needed.

·He said he migrated in 1986

·In Italy

1.Fitter Machinist 1975-1986 (apart from Military Service) he said he was exposed to the noise of lathes, other metal working machinery, steel workshop, cutting steel, lathes and milling machines. He said he did not have to raise his voice to have a conversation at 1 metre. He said hearing protection was worn. He said his shift was 8 hours per day 5-6 days per week.

2.National Service for 2 months as a Driver of a small Fiat Jeep. He said he did basic training and no rifle or grenade practice.

4.     FINDINGS ON PHYSICAL EXAMINATION

On examination I observed the following.

Ears

Otomicroscopy

Right Ear:

His right external auditory canal is partly obscured by earwax.

His visible right tympanic membrane is intact.

Left Ear:

His left external auditory canal is normal.

His left tympanic membrane is intact.

Weber Test: Using the 512Hz tuning fork he denied hearing the Weber test .

Rinne Test: Using the 512Hz tuning fork his Rinne test is positive on the right and he denied hearing it on the left.

Nose

Anterior rhinoscopy is normal.

Throat

His oropharynx is normal.

He had no cervical lymphadenopathy.               

AUDIOGRAM

My pure tone audiometry was performed on 4.4.23 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. His responses were repeatable and I considered accurate auditory thresholds were obtained. His pure tone audiogram showed a bilateral sensorineural hearing loss maximal in the high frequencies.

My audiogram in tabular form

Injury deemed to have happened on:	Frequency Hz	Left dB HL Air Bone		Right dB HL Air Bone
15.11.21	500	40	45	25	30
1000	45	50	40	30
1500	55	55	55	45
2000	45	50	40	45
3000	55	55	55	50
4000	45	45	50	45
6000	50	45
8000	70	65

1. The Appeal Panel accepts the findings of Dr Brian Williams, member of the Panel and adopts his report. The Appeal Panel finds the hearing losses at 2-4 kHz are due to his occupational noise exposure. The hearing losses below 2 kHz have a profile inconsistent with occupational noise induced hearing loss. The Appeal Panel finds his tinnitus does interfere with activities of daily living and assess it at 3% addition.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 26 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4639/22
Applicant:	Luigi Reghelin
Respondent:	Kalmar Equipment (Australia) Pty Ltd

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 Dr Paul Niall and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - calculation of whole person impairment (WPI) for industrial deafness as set out in the Table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-

Notional date of injury	Frequency Hz	Left dB HL Air Bone	Right dB HL Air Bone	Total % BHI	Occupational % BHI
15/11/21	500	40 45	25 30	3.0	0.0
1000	45 50	40 30	8.5	0.0
1500	55 55	55 45	11.2	0.0
2000	45 50	40 45	5.1	5.1
3000	55 55	55 50	5.6	5.6
4000	45 45	50 45	3.6	3.6
6000	50	45
8000	70	65
TOTAL % BHI: 37.0
Less Pre-existing non-related loss: 22.7
Less Presbyacusis correction: 1.7
Add % of severe tinnitus: 3.0
Adjusted total % BHI: 15.6
Resultant total BHI of 15.6 % = 8 whole person impairment (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