Samaan v Blacktown City Council
[2023] NSWPICMP 315
•7 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Samaan v Blacktown City Council [2023] NSWPICMP 315 |
| APPELLANT: | Mofreh Samaan |
| RESPONDENT: | Blacktown City Council |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Brian Williams |
| MEDICAL ASSESSOR: | Joseph Scoppa |
| DATE OF DECISION: | 7 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for hearing loss; whether subsequent hearing deterioration either subject to section 323 deduction or causally connected to subject injury; Held – section 323 does not apply to subsequent injuries; relevantly the further loss of hearing; and error therefore established; however, applying Secretary NSW Department of Education v Johnson, the subject noisy employment of 1996 was unrelated to the subsequent near total loss of hearing over the following years; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 November 2022 Mofreh Samaan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Thandavan Raj, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 October 2022.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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
On 1 August 2022 the matter was referred to the Medical Assessor for assessment of binaural hearing loss caused on a deemed date of injury 5 November 1996.
The referral followed a Certificate of Determination dated 22 July 2022 by Member Deborah Moore.
Mr Samaan was born in 1950 and was 72 years when examined by the Medical Assessor. Mr Samaan had been aware of his hearing loss for at least 10 years and had been using hearing aids since about 2018. His hearing had deteriorated markedly since 2018 nonetheless and the hearing aids were not as good as they originally were in 2018.
The Medical Assessor found that in 2018 he was suffering a binaural hearing impairment of 11.92% from which the Medical Assessor deducted 9.9% to leave result in a finding of 1.3%.
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 worker requested to be re-examined by a Medical Panel Medical Assessor. A re-examination was conducted by Medical Assessor Scoppa of the panel on 21 April 2023.
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.
Further medical examination
Medical Assessor Joseph Scoppa of the Appeal Panel conducted an examination of the worker on 21 April 2023 and reported to the Appeal Panel.
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 which 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 MAC
The Medical Assessor took a history that at the deemed dated of injury Mr Samaan had been employed by Blacktown Council between 1989 and 1996. He had been a carpark ranger initially and then became a cleaner, being exposed to the noise of backpack vacuum cleaner, a buffer and polisher which were both noisy. Before that time he had been a traffic engineer in both the Penrith and Canterbury Council, both jobs being office jobs.
He had been an engineer in Egypt, in the Army and civilian life but not exposed to noise again because he was employed in office jobs.
The Medical Assessor noted in taking the history that there was some variation in that history as Dr Corlette reported on 23 October 2020 that Mr Samaan was indeed exposed to noise for 17 years in Egypt and that Dr Howison recorded that Mr Samaan worked for the respondent only for seven months also working for several other employers between 1987 and 1995. These variations were not significant, the Medical Assessor said, as the duration of noise exposure was the same, namely about five to seven years.[1]
[1] Appeal papers page 26.
The Medical Assessor stated that the audiogram he took showed severe losses on all frequencies and indeed without hearing aids Mr Samaan was deaf. The Medical Assessor said:[2]
“The thresholds were 85-90dB on the right and thresholds could not be recorded in the left ear.”
[2] Appeal papers page 26.
The Medical Assessor said:
“6.1 In assessing industrial deafness, the duration, character of exposure, and audiogram profile are considered. To calculate hearing loss caused by industrial noise, frequencies of 2000-4000Hz are typically included, and the lower frequencies are excluded. However, depending on the length of exposure severity and character of noise, frequencies below 2000Hz may be included in industrial deafness assessment, especially if the duration of exposure is greater than 30 years.
6.2. There were several audiograms available in brief.
6.3 The audiograms dated 15/08/2018 and 27/07/2018 were similar, with the thresholds at 20- 30dB at the lower frequencies improving to be normal at 2000Hz and then dropping to 60-70dB at 4000Hz. The bone conduction at 3000-4000Hz was significantly better at 30 and 40 dB, respectively.
6.4 The audiogram recorded by Dr Corlette in 2020 shows deterioration in all frequencies, especially at 1000-3000Hz. This audiogram shows deterioration since 2018.
6.3 [sic] The audiogram Dr Howison recorded for his report in Dec 2020 shows thresholds at 30db at 1500Hz dropping to 60dB at 4000Hz. This audiogram shows deterioration from that of 2018.
6.4 The audiogram dated 23/08/21 shows severe losses with thresholds at 80-90db in both ears and slightly better bone conduction.
6.5. My audiogram today shows severe deterioration and very little hearing left in both ears. Both the audiograms of 2021 and 2022 show significant deterioration from 2020 and even more so from that of 2018.
6.6 It is to be noted that there has been no noise exposure since 1996 and the first audiogram available following the date of injury in 2018.
6.7 The deterioration between 2018 and 2020, and 2021 is not due to noise injury but other pathology….”
The Medical Assessor said that accordingly the severe losses noted on the audiograms of 2020 – 2021 were not due to noise as exposure had not been sufficiently severe.
The Medical Assessor relied on the audiogram of 15 August 2018 being the one closest to the date of injury.
The Medical Assessor did not think that hearing aids were necessary as a result of the injury. He also said that the current severe hearing loss would not in any event be helped with hearing aids, and Mr Samaan was a candidate for a cochlear implant.
The Medical Assessor’s findings were that the hearing loss indicated on the audiogram of
15 August 2020 at the 3000 – 4000 Hz frequencies were due to industrial deafness.The frequency at 2000 Hz was excluded as being normal.
He summarised his earlier reasons for his calculations as follows:[3]
[3] Appeal papers page 29.
“· Noise exposure ceased in 1996
· The audiogram of 2018 only shows mild losses at 3000-4000Hz
· He only has about five to seven years of noise exposure
· His audiogram of 2020 and 2021 shows a severe hearing loss, not due to noise injury but other causes
· The best audiogram closest to the injury (2018) is used for assessment
· The better bone conduction thresholds are used for the assessment
· The hearing has deteriorated significantly since 2018
· Industrial deafness is no longer an issue. It has been eclipsed by other pathology, causing a total loss
· His total loss may not be helped with hearing aids, and he may be a candidate for a cochlear implant based on his current audiogram
· The need for a cochlear implant is not due to noise injury but other pathology.”
With regard to the opinions of Dr Corlette and Dr Howison, the Medical Assessor noted that they had not considered hearing deterioration since the audiogram in 2018 and had erred in their assessment by using the audiograms of 2020.
Their assessments the Medical Assessor said could not accordingly be compared.
In his Table 3 assessment MAC the Medical Assessor found that in 2018 Mr Samaan was suffering a binaural hearing impairment of 11.92%, from which the Medical Assessor deducted 9.9% to result in a finding of 1.3%.
The Medical Assessor also included his assessments from the 2022 audiogram which showed a 99.4% binaural hearing impairment from which he deducted 98.1% to show the same result.
The Medical Assessor noted that there was no tinnitus award available in the Table of Disabilities which govern this particular claim by virtue of the deemed date of injury.
SUBMISSIONS
Mr Samaan alleged that the history was deficient because it failed to make reference to “several significant events”. We were referred to the findings of Dr Howison that the exposure noise to heavy-duty backpack vacuum cleaner lasted for at least six hours per day over seven months.
It was submitted that the Medical Assessor had failed to explain why there was no additional assessment of the tinnitus.
It was alleged that the Medical Assessor had erred in stating that the severe tinnitus was not assessable as had been referred in Chapter 9.11 of the Guides in that regard.
The appellant alleged that the Medical Assessor had failed to explain what the other causes of the deafness were.
The appellant submitted that his opinion that he was a candidate for a cochlear implant was at odds with the specialists.
It was then submitted that the deduction the Medical Assessor had made for a pre-existing injury, abnormality or condition was “a clear error with no basis”.
It was submitted that
“The Assessor’s statement is difficult to reconcile with the facts that:
· The appellant had not worked since a deemed date of injury 1996
· It is accepted that the respondent was the last noisy employer and that the appellant was found to suffer from severe tinnitus
· The appellant has noticed his hearing loss for many years as reported to Dr Howison and that there was no evidence that a large proportion of hearing loss was due to a pre-existing condition.”
The respondent
The respondent referred to the history taken by the Medical Assessor and noted that he had not failed to consider relevant history or relevant facts before him. The Medical Assessor had specifically considered the report of Dr Howison.
With regard to the deduction made pursuant to s 323 of the 1998 Act, the respondent referred to Chapter 1.6 of the Guides, noting that a Medical Assessor was obliged to assess a claimant as he presented on the day of the consultation. The Medical Assessor adequately explained the reasons why he made his assessment pursuant to s 323.
It was also submitted that the Medical Assessor had given adequate reasons regarding his finding about hearing aids – namely, that Mr Samaan’s hearing loss is so severe that hearing aids would not improve his ability to hear. Further, the evidence demonstrated that the severe deterioration in his hearing was not work-related and the suggested cochlear implant by the Medical Assessor was not as a result of Mr Samaan’s employment.
The respondent submitted that the reliance by Mr Samaan on Chapter 9.11 of the Guides was misplaced, as the applicable guidelines were in section 5.4 of the Workers Compensation Benefits Guide, which provide for the assessment of injuries between
1 July 1987 and 31 December 2001 are to be determined according to the Table of Disabilities. Accordingly no compensation was payable for tinnitus.The respondent also submitted that the calculation of presbycusis was determined by Chapter 9.10 of the Guides, which the Medical Assessor had correctly applied.
DISCUSSION
Section 323 of the 1998 Act provides relevantly:
“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.”
It can be seen that a deduction can only be made for pre-existing conditions or abnormalities. As the assessment was made on 6 October 2022 and the date of injury was deemed to be
5 November 1996, the deduction made by the Medical Assessor was not authorised by
s 323.We do not find any error in the facts set out by the Medical Assessor. For more abundant caution the Panel through Medical Assessor Scoppa took the opportunity to confirm the facts relied on by the Medical Assessor. His report follows:
“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: W3873/22
Applicant: Mofrey Samaan
Respondent: Blacktown City Council
Examination Conducted By: Dr Joseph Scoppa
Date of Examination: 21 April 2023
Mr Samaan attended with his wife on 21 April 2023 for the purposes of obtaining an occupational history.
HISTORY OBTAINED
Mr Samaan came to Australia from Egypt in 1986. He said that in Egypt he was employed as an Engineer and Draftsman in an office, and was not exposed to loud noise.
His first employment in Australia was with Canterbury City Council as an Assistant Traffic Engineer for about 12 months. He carried out design drawing work in a quiet office environment, and also assisted with facilitating temporary street parking at schools in the morning for bus drivers who had transported children to school. He said he was not exposed to loud noise during this employment.
Worked for Penrith City Council for about 2 years from 1987 to 1989 carrying out the same roles as at Canterbury City Council. He said he was not exposed to loud noise during this employment.
Worked for Blacktown City Council from about 1989 to about 1998. For the first 2 years he worked as a Ranger in a 5 storey Council Car Park. He said this was noisy employment because he was exposed to noise from motor vehicle and truck motors throughout the day from cars and trucks that came and went. He said he usually worked 6 hours a day. Ear protection was not provided. He said the noise level was such that he had to raise his voice in order to communicate with a person standing about a metre away from him.
For the next 6 to 7 years he continued working for Blacktown City Council, but as a Cleaner. He said he was exposed to loud noise from a backpack vacuum cleaner that he used for up to 6 hours a day. He worked alone and cleaned Council rooms, halls, and convention centres in Council buildings, and occasionally cleaned areas outside the buildings. He said some of the larger halls had an area of up to 1500 square metres that required to be cleaned. He said this was noisy employment as he used very noisy back-pack industrial vacuum cleaners, buffing machines, and leaf blowers. He usually worked from 6 to 9 am. He said the noise level was such that he had to turn off the vacuum cleaners or leaf blowers in order to communicate with a person standing about a metre away from him. Ear protection was not provided.
He said this was his last employment. He stopped working in about 1998 because he injured his right knee at work, and had also undergone open heart surgery. He has not worked since 1998.”
It can be seen that the history taken by the Medical Assessor is the same as that recorded by Medical Assessor Scoppa. We are not satisfied that the Medical Assessor has made any error of fact in his assessment. Indeed his acknowledgement of the variations in the history and his conclusion that they were inconsequential we accept.
We concur with the respondent that at the deemed date of injury, no assessment was promulgated for the presence of tinnitus.
The adjustment for presbycusis is governed by a statutory deduction and application of the 1976 National Acoustic Laboratory (NAL) tables, as the deemed date of injury precedes
1 January 2002, and the Table of Disabilities is applicable. The statutory deduction is 0.5dB for each year over the age of 50 years. The Panel has checked the calculations by the Medical Assessor, and notes that there was a minor error as he recorded in Table 2 that the right ear bone conduction at 4kHz was 40, when the audiogram of 2018 that he used showed a loss of 50. The adjusted calculations showed that Mr Samaan’s occupational BHI would have been 1.6% binaural hearing loss, rather than the 1.3% awarded by the Medical Assessor. As the compensable threshold pursuant to s 69A at the date of injury requires a finding of at least 6%, this error is not relevant to Mr Samaan’s entitlement, and the MAC may be confirmed.The second error made is that the Medical Assessor used s 323 to deduct the impairment caused by the subsequent passage of time. The appropriate method is to consider whether the subject injury is a material factor in that subsequent loss.[4]
[4] See Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [70] per Emmett AJA. McFarlan JA and Simpson AJA agreeing.
In the present case we are satisfied that Mr Samaan’s subsequent loss of hearing has no such relationship. The nature of the subsequent hearing loss we are satisfied would have occurred whether or not Mr Samaan had been exposed to the noisy employment admitted by the respondent. The loss, as determined in all the expert reports showed a deterioration from the 2018 audiograms of 27 July 2018 and 15 August 2018. They showed mild losses at 3000 – 4000Hz, but by 2020 the audiograms of Dr Corlette and Dr Howison showed a deterioration in all frequencies – especially in the 1000-3000Hz range, and such deterioration has continued, until by 2021 and 2022 Mr Samaan has very little hearing left in either ear.
The nature of this hearing loss is not consistent with noise induced hearing loss, but due to other pathology which has not been defined. Mr Samaan has not worked at all since 1998 and this severe loss of hearing is not related to exposure to noise.
Consequently, although we find the Medical Assessor to have erred by making an inconsequential calculation error as indicated, and by applying the provisions of s 323, his assessment that the subsequent hearing loss experienced by Mr Samaan is not related to exposure to noisy employment, is confirmed. It is accordingly not necessary to do anything more than confirm his assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 October 2022 should be confirmed.
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