Scardamaglia v Amcor Pty Ltd
[2023] VSC 114
•15 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04294
| FELICE SCARDAMAGLIA | Plaintiff |
| v | |
| AMCOR PTY LTD | First Defendant |
| - and - | |
| A/PROF BERNARD LYONS | Second Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 December 2022 |
DATE OF JUDGMENT: | 15 March 2023 |
CASE MAY BE CITED AS: | Scardamaglia v Amcor Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 114 |
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ADMINISTRATIVE LAW — Judicial Review — Medical Panel — Impairment benefit claim—Industrial deafness — Diminution of hearing — Binaural percentage loss of hearing — Whether Panel erred in failing to consider the effect of tinnitus — Whether AMA Guides Chapter 9 applicable — Application of the Improved Procedure for Determining Percentage Loss of Hearing (NAL Procedure) — Relevance of the Guidelines published by the Australian Society of Otolaryngology, Head and Neck Surgery Victorian Section (ASOHNS Guidelines) — Minister’s approval dated 28 October 2018 of manner for determining the percentage of diminution of hearing — Accident Compensation Act 1985 ss 91(1), (3), (4).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J P Brett KC E Makowski | Williams Winter |
| For the First Defendant | R Kumar | Hall & Wilcox |
| For the Second Defendant | No appearance | Victorian Government Solicitor |
HER HONOUR:
Mr Scardamaglia (the plaintiff) has made a claim for an impairment benefit for industrial deafness. His claim was accepted and, having disputed the resulting 0% assessment of whole person impairment (WPI), the dispute was referred to a medical panel. The second defendant, who alone comprised the Medical Panel (the Panel), provided an opinion and accompanying reasons dated 18 September 2021 (the Panel Opinion and Reasons). The Panel concluded that the WPI was 0%. The plaintiff now seeks orders quashing the Opinion and remitting the questions to a differently constituted medical panel.
The plaintiff’s employer (the defendant) is the only defendant to contest the proceeding. The second defendant will abide by the outcome of the decision in accordance with a Hardiman letter dated 1 December 2021.[1]
[1]R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
Although the plaintiff’s claim form was dated 9 June 2020, and lodged during the operation of the Workplace Injury Rehabilitation and CompensationAct2013 (Vic), his last day of employment was 25 May 2012 and his injury was deemed to have been sustained on that day.[2] Accordingly his claim has been dealt with pursuant to the provisions of the Accident Compensation Act1985 (Vic) (the Act).
[2]Workplace Injury Rehabilitation and Compensation Act2013 (Vic) s 60(1).
The plaintiff relies on a single ground: that the Panel did not assess his industrial deafness in accordance with s 91 of the Act. The assessment was said to be erroneous because it failed to account for the presence of tinnitus. This was an alleged error of law described in a number of alternate ways: the Panel misunderstood its task or failed to properly apply the American Medical Association Guides, 4th Edition (the AMA Guides); it failed to take account of a relevant consideration (the presence of tinnitus); or it failed to give adequate reasons for not addressing impairment arising from tinnitus.
The underlying facts are straightforward. The plaintiff was born in Italy on 1 March 1947. He migrated to Australia in 1954. Relevantly, he worked between 1977 and 1985 as a machine operator in a noisy environment. Then, from 1985 until retirement in 2012, he manufactured plastic bags with the defendant, also in a noisy environment. He told the Panel he had worn hearing aids for three years and suffered from ‘constant annoying tinnitus’. There was no other history of ear problems and no other risk factors for hearing loss. He had not made any prior claim for industrial deafness.
The impairment benefit claim form identified the relevant conditions as ‘noise induced hearing loss and tinnitus’. The WorkCover claims agent referred the claim to Dr Michael Silverstein who provided a medical report dated 21 September 2021. Dr Silverstein’s report recorded:
He has also been aware of significant tinnitus which has been persistent. This occurs particularly when he removes his hearing aids, and it becomes quite intransigent.
On the basis of that report, the first defendant accepted liability for the claim by a notice dated 24 March 2021, which was described only as ‘hearing loss’. The assessment was calculated at 0%. The plaintiff accepted the liability decision and disputed the assessment. In accordance with s 104B of the Act the disputed assessment was referred to a medical panel.
The questions for the Panel and the answers were:
Question a): What is the degree of permanent impairment resulting from industrial deafness assessed in accordance with Section 91 of the Act?
Answer: The Whole Person Impairment calculated in accordance with Section 91 of the Act is 0%. The degree of impairment is permanent.
Question b): Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table on Section 98E?
Answer: No.
The Panel was constituted by Associate Professor Bernard Lyons, an otolaryngologist, who also determined the WPI as 0%. The Panel conducted a physical examination and obtained an audiological assessment. The Opinion and Reasons attached a copy of the audiological testing results. The Panel used the audiological assessment, which it considered to be accurate and reliable, to assess a binaural hearing loss of 16.7% with a 7.5% deduction for presbycusis. This resulted in a 9.2%binaural hearing loss due to occupational noise exposure. Converted to a WPI, this resulted in a 0% impairment. The Panel assessment, despite obtaining a history of tinnitus, made no reference to an allowance for tinnitus.
The plaintiff’s complaint is that the Panel did not apply Chapter 9 of the AMA Guides, which provides for a measurement of the effect of tinnitus in addition to an assessment of binaural hearing loss. The defendant accepts that the Panel did not make any separate allowance for impairment arising from tinnitus but submits that there was no error in the Panel’s approach because the Act provides for an alternative method of assessment and completely replaces any recourse to the AMA Guides.
The question to be determined therefore is: did the Panel follow the method for assessing impairment for industrial deafness as prescribed by s 91 of the Act?
The legislative framework and assessment process
The Act
Section 5(1) of the Act provides that injury:
means any physical or mental injury and, without limiting the generality of that definition, includes
(a) industrial deafness; and
(b)a disease contracted by a worker in the course of the worker’s employment…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
Section 5(1) of the Act provides that industrial deafness:
means any condition of deafness caused by –
(a) exposure;
(b) continued exposure; or
(c) periods of continued exposure –
to industrial noise.
Section 91 of the Act provides the methodologies for the assessment of impairments. Impairment is assessed for a variety of statutory purposes including, as here, the calculation of compensation payable for non-economic loss pursuant to s 98C.
Section 91(1) of the Act relevantly provides:
Assessment of impairment
(1)In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment—
(a) made in accordance with—
(i)the A.M.A Guides as applicable subject to subsections (1A) and (1B); or
(ia)the A.M.A. Guides as applicable subject to subsections (1A) and (1B) and guidelines in accordance with subsection (6), (6A) or (6B); or
(ii) methods prescribed for the purposes of this section—
and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and
(b) …
By ss 91(3) and (4), the Act specifically provides a method for assessment of the degree of impairment resulting from diminution of hearing. Those sections set out the methods to be used for this purpose. Relevantly, s 91(4) deals first with the method for assessment of diminution of hearing. It provides:
For the purposes of this section and section 89(3)(a), the percentage of diminution of hearing—
(a) must be assessed as a binaural loss of hearing and determined—
(i) by a person or class of persons approved; and
(ii) in the manner approved—
by the Minister; and
(b)must be assessed as a binaural loss of hearing and determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory.
Section 91(3) of the Act deals with the conversion of the assessed diminution of hearing to a degree of impairment of the whole person. It provides:
For the purpose of assessing the degree of impairment of the whole person resulting from diminution of hearing, the percentage of the diminution of hearing determined in accordance with subsection (4) is to be converted as follows –
(a)if the diminution of hearing assessed as a binaural loss of hearing is less than 10 per cent NAL, the degree of impairment is 0;
(b)if the diminution of hearing assessed as a binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10%;
(c)if the diminution of hearing assessed as a binaural loss of hearing is more than 10 per cent NAL, the degree of impairment is the percentage equivalent of the number (rounded up to the next whole number) given by the formula –
10 + [0.278 (NAL-10] –
where NAL is the percentage of diminution of hearing determined in accordance with subsection (4).
Diminution of hearing is not defined in the Act.
The process in the AMA Guides
Chapter 9 of the AMA Guides describe the ear as having two functions: hearing and equilibrium. The AMA Guides provide a separate assessment method for each loss of function and the allocation of a percentage WPI. In this case, only hearing function is relevant.
Under the AMA Guides, assessing hearing loss follows a three step method, which is described as ‘relatively specific’.[3] First, each ear is tested with a pure tone audiometer. The level of hearing (measured in decibels) is measured at four frequencies (hertz) for each ear. The four threshold levels are then added to arrive at a total sum for each ear, which is described as the ‘Decibel sum of the hearing threshold level’ (the DHS level). Finally, the DHS levels are converted to a percentage hearing impairment. Table 1 converts a monaural hearing loss by translating the DHS Level for each ear to a monaural hearing impairment for that ear.[4]
[3]American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1995), 9/223 (‘AMA Guides’), unlike the criteria for evaluating disturbances of equilibrium.
[4]Ibid 9/225.
The assessment of binaural impairment is arrived at by using Table 2.[5] That table combines the hearing thresholds in each ear as measured by the DHS Levels to arrive at a percentage binaural hearing impairment.
[5]Ibid Table 2 ‘Computation of Binaural Hearing Impairment’ 9/226-9/227.
The AMA Guides give examples of a binaural hearing impairment assessment. Following one illustration demonstrates how this methodology for measuring hearing loss and calculating hearing impairment is approached. As it measures thresholds, the higher the figure, the poorer the hearing.
Using Table 1, the relevant monaural impairment of the right ear is 15% and of the left ear is 45%. Using Table 2 the hearing level of the poorer ear (220 DHS Level) is combined with the better ear (140 DHS Level) to give a 20% binaural hearing impairment. Table 3[6] is used to convert the percentage of hearing impairment to a WPI. Table 3 always uses a binaural impairment calculation for this conversion. Using Table 3, a 20% binaural hearing impairment results in a 7% WPI (18.9%-21.4% binaural hearing impairment).
[6]Ibid Table 3 ‘Relationship of Binaural Hearing Impairment to Impairment of the Whole Person’ 9/228.
In addition to this impairment for hearing loss, the AMA Guides identify other disturbances of the ear, including tinnitus, which may impair the function of the ear but are described as ‘not measurable’.[7] The AMA Guides provide:
Disturbances of the ear, such as chronic otorrhea, otalgia, and tinnitus, are not measurable. Therefore, the physician should estimate an impairment percentage based on the severity of those conditions and the degree to which they interfere with functions of the ear, and a percentage that is consistent with established values.
Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore an impairment percentage up to 5% may be added to the impairment for hearing loss.
[7]Ibid 9/224.
Therefore if using the AMA Guides any impairment for tinnitus would be added to the impairment for hearing loss as calculated by Table 2. In the above example, under the AMA Guides an allowance of up to 5% would be added to the 20% impairment calculated under Table 2 to give a maximum hearing impairment of 25%. Under Table 3 this would convert to a maximum WPI of 9%.
The NAL Procedure
Section 91(4) of the Act requires the use of the Improved Procedure for Determination of Percentage Loss of Hearing (1988 edition or later prescribed edition) published by the National Acoustic Laboratory (NAL Procedure). The NAL Procedure was published when widespread computer use in routine audiological calculations was introduced. The NAL Procedure introduction notes that the previous tables were error prone and had the disadvantage of measuring hearing threshold levels in steps of five decibels. By comparison, the computer programs and tables generated by the NAL Procedure use smaller threshold level measurements and are more accurate. The publication also includes revised tables to take account of presbycusis (the effect of aging on hearing). The NAL Procedure recommends the NAL tables replace the currently used tables for measuring percentage hearing loss. The abstract states:
This report presents empirical formulas and computer programs which can be used to calculate binaural and monaural percentage loss of hearing (PLH) accurately in hearing threshold level (HTL) steps as small as 0.5dB or less. Binaural and monaural PHL tables are also presented which differ slightly from the currently used tables but which give the same results as the computer programs. PHL determined by means of these new tables is at least as good a predictor of hearing difficulties in everyday life as PHL determined by means of the currently used tables.
….The frequency range of these new binaural and monaural PHL Tables is 500 to 4000 Hz, the same as the currently used tables, ….It is recommended that the new procedure for determining PLH replace the currently used tables.[8]
[8]National Acoustic Laboratories, Improved Procedure for Determining Percentage Hearing Loss (Report No 118, January 1988), included in Affidavit of Ilona Carmen Strong sworn on 23 February 2022 exhibit ISC1 2 (‘NAL Procedure’).
Section 91(4)(b) of the Act mandates the use of the NAL Procedure and the tables contained therein for the assessment of the percentage of diminution of hearing. The use of the binaural tables is required in all cases. Thus, the NAL Procedure governs both the measurement of hearing threshold levels (HTL) and the calculation of percentage hearing loss (PHL). This has the effect of removing any calculation of DHS level and the use of Table 1 or 2 in Chapter 9 of the AMA Guides for the purpose of converting measurements of hearing loss to a percentage hearing impairment. Section 91(3) of the Act provides the method for converting the percentage diminution of hearing – obtained pursuant to s 91(4) – to WPI. It removes any application of Table 3 in Chapter 9 of the AMA Guides.
The Minister’s approval under s 91(4)(a)(ii)
On 25 October 2018, the then Minister for Finance, Robin Scott MP, signed a document headed Approval of the Manner for Determining the Percentage of Diminution of Hearing (Minister’s Approval). The approval stated it was in accordance with ss 91(4)(a)(ii), 98E(3)(a)(ii) and 98(2AB)(a)(ii) of the Act.[9] It approves ‘the following manner of determining the percentage diminution of hearing for the purposes of the Victorian Worker’s Compensation Legislation’. It sets out six matters, four of which are not controversial in the current circumstances: (I) that there shall be a comprehensive assessment, examination and report by a specialist, (II) that the audiological services be independent, (III) that the assessor take responsibility for the accuracy of the audiology and it prescribes the form and calibration of the audiometer, and (V) it permits other investigations as the assessor considers necessary.
[9]As well as ss 63(4) and 221(2) of the Workplace Injury Rehabilitation and CompensationAct2013 (Vic).
Relevantly, the remaining two matters are:
IV.The compensable hearing loss shall be determined in accordance with the publication Improved Procedure for Determining Percentage Loss of Hearing, NAL report No.118 January 1988 published by the National Acoustic Laboratories including the presbycusis table in the same publication.
and:
VI.The determination will be made using the Guidelines for the Assessment of Noise Induced Hearing Loss (Revised June 2017) by the Victorian Section of the Australian Society of the Otolaryngology Head and Neck Surgery).
ASOHNS Guidelines
The Victorian Section of the Australian Society of the Otolaryngology, Head and Neck Surgery has published Guidelines (ASOHNS Guidelines). They are titled ‘Guidelines for the assessment of impairment from compensable hearing loss for the State of Victoria’. They set out as their purpose ‘to assist hearing loss assessors in assessing compensable hearing loss and the resulting permanent impairment.’[10] The preamble observes that assessment must comply with the relevant legislation and any Ministerial Direction. They are therefore directed at the steps necessary to distinguish that which is compensable from that which is not in accordance with the relevant legislation.
[10]The Australian Society of Otolaryngology, Head and Neck Surgery, Guidelines for the Assessment of Impairment from Compensable Hearing Loss for the State of Victoria (2017), included in Affidavit of Ilona Carmen Strong sworn on 23 February 2022 exhibit ISC1 22 (‘ASOHNS Guidelines’).
The ASOHNS Guidelines set out a number of considerations – namely matters relevant to the medical assessment, and the minimum requirements for the audiometric assessment, including that additional testing such as speech audiometry may be undertaken. Sections 5 and 6 of the ASOHNS Guidelines deal with interpretation of results and the preparation of the medical opinion, including the need to deal with issues of causation – for example, consideration of non-compensable hearing loss, the use of presbycusis tables, unilateral hearing loss, and combined noise-induced and constitutional hearing loss.
Section 7 of the ASOHNS Guidelines is headed ‘OTHER CONSIDERATIONS.’ Relevantly, it states:
a. Tinnitus
The 4th Edition of the AMA Guides relevant to ENT Impairment assessment refers only to the effect of tinnitus on the function of the ear. This means the effect of tinnitus on hearing and any effect on the pure tone audiogram will be accounted for in that evaluation of hearing.
Other symptoms related to tinnitus, which may adversely affect the ability to carry out the activities of daily living including anxiety and sleep disturbance, are responses to the presence of tinnitus and not directly related to hearing.
The impairment evaluation of these aspects of tinnitus belongs in the field of specialists in psychological medicine. The ENT impairment assessor can make a recommendation that such an assessment be carried out if considered appropriate.[11]
[11]Ibid exhibit ISC1 27.
The Medical Assessments of Impairment
Mr Silverstein’s report contains a template table headed ‘Diminution of hearing assessed by the NAL method’. Under the identifying information the following table is set out:
The Table makes clear that at each frequency the threshold levels in each ear are converted to a PHL and those PHL figures are added to obtain a total PHL. The ASOHNS Guidelines are specifically referenced in relation to deductions for additional pathology. Mr Silverstein’s assessment was 15% with a 7.5% deduction for presbycusis. There is no suggestion that Mr Silverstein obtained speech audiometry testing.
The Reasons also attach the results of the audiological testing undertaken for the Panel. They include a speech audiometry. The speech audiometry test results describe ‘bilateral mild sloping to a moderate-severe SNHL’.[12] The relevance of that investigation to the impairment assessment is not discussed in the Reasons. The Panel, like Mr Silverstein, calculated loss from the thresholds obtained at 2kHz, 3kHz and 4 kHz respectively.
[12]Sensorineural hearing loss.
Consistent with the history it obtained, the Panel stated it made no deduction under s 91(3AAA) of the Act for non-compensable hearing loss.
Neither Mr Silverstein’s report nor the Reasons record any consideration of tinnitus in the assessment under s 91(4) of the Act.
The plaintiff’s submissions on assessment of impairment
The plaintiff’s primary submission is that the ASOHNS Guidelines as approved by the Minister are consistent with and incorporate some use of the AMA Guides. The plaintiff submits that the ASONHS Guidelines specifically contemplate this by referencing the AMA Guides’ method of assessment under a heading dealing with tinnitus.
The plaintiff submits that, while s 91(4) of the Act and the ASOHNS Guidelines require use of the NAL Procedure for measuring a loss of hearing and calculating a binaural percentage loss of hearing, the NAL Procedure does not address tinnitus. The ASOHNS Guidelines specifically refer to an assessment of the effects of tinnitus on hearing function of the ear under the AMA Guides. Impairment from tinnitus is provided for separately to a measurable loss of hearing in the AMA Guides, and accordingly the plaintiff submits that to the extent the AMA Guides are not displaced by s 91 of the Act, they are to be applied.
The plaintiff’s submission is premised on the AMA Guides referring to two ways that tinnitus may affect hearing:[13]
the effect of tinnitus on hearing and any effect on the pure tone audiogram will be accounted for in that evaluation of hearing.[14]
[13]The AMA Guides’ treatment of tinnitus set out in full above at [24].
[14]Emphasis added by the plaintiff in his oral submissions.
In the plaintiff’s submission, both effects (on hearing and pure tone audiogram results) must be included in the calculation of impairment in the evaluation and calculation of hearing impairment. The plaintiff submits that the results of the pure tone audiogram do not by themselves account for the effect of tinnitus on hearing – which is described in the AMA Guides as ‘not measurable’. Accordingly, the plaintiff submits that the Panel is to have recourse to the AMA Guides to adjust the percentage loss of hearing calculated by the NAL procedure to account properly for the effect of tinnitus on hearing. This, says the plaintiff, is the effect of s 91(4)(a)(ii) and the ASOHNS Guidelines.
The defendant’s submissions on assessment of impairment
The defendant submits that s 91(4) of the Act replaces the method prescribed by the AMA Guides for the assessment of hearing loss:
(a)by prescribing an assessment of loss as a binaural loss determined in accordance with the NAL Procedure (s 91(4)(b)); and
(b)by requiring an assessment be determined using the ASOHNS Guidelines being a manner of assessment and determination approved by the Minister (s 91(4)(a)(ii)).[15]
[15]Act s 91(4).
As a consequence, the defendant submits that the method prescribed by s 91 of the Act excludes a separate assessment of tinnitus. The defendant submits that the application of the NAL Procedure to the results of the pure tone audiogram in the manner approved by the Minister encompasses the whole of the impairment of hearing.[16] According to the defendant, the ASOHNS Guidelines confirm that the effect of tinnitus on hearing will be accounted for by the pure tone audiogram results, and so any further allowance for tinnitus would result in a duplication. In support of that submission I was directed to Mr Silverstein’s report and the Reasons, which made clear that although both doctors were aware of tinnitus, neither made an additional allowance for it.
[16]Transcript of Proceedings, Scardamaglia v Amcor Pty Ltd & Anor (Supreme Court of Victoria) S ECI 2021 04294, Justice Forbes, 2 December 2022) 18 (‘T’).
Cases considering industrial deafness
Although neither side could identify any cases having direct bearing on the present question, the parties identified a number of cases that have dealt specifically with the measurement of industrial deafness. They are helpful because they identify some particular features of industrial deafness. First, industrial deafness is a specifically defined injury within what is conventionally described as the extended definition of injury. It is neither a disease contracted in the course of employment nor is it considered as a pre-existing injury affected by employment in one of the ways contemplated by subsection (c) of the definition. As described by Osborn J in Holden Ltd v Rundle (‘Holden’),
..it is a condition that is to be distinguished from other categories of injury falling within that extended concept as further defined by s 5. In the present situation, the condition is comprehended by the concept of injury, whereas in other situations… impairment resulting from injury may be a component of a condition.
Moreover, whereas industrial deafness resulting from repeated numerous noise events might conceptually be regarded as comprising a series of aggravations, exacerbations or deteriorations of pre-existing injury or disease, it is not so defined for the purposes of the relevant provision of the AC Act. For reasons which have their origins in the history of workers’ compensation law, the worker’s ultimate condition is deemed to be an injury.[17]
[17][2011] VSC 663, [26]-[27].
The issue in Holden was whether the deduction for hearing loss occurring prior to employment was to occur as part of the assessment of impairment pursuant to s 91 of the Act or in the calculation of impairment pursuant to s 88(1). Although that issue was one of statutory construction, it did not address the proper construction of s 91 as it turned on the construction of s 88.
The defendant also referred to the decisions of the Supreme Court in Del Borgo v Niselle[18] and on appeal, the Court of Appeal in Victorian Workcover Authority v Del Borgo.[19] The question in these decisions addressed competing constructions as to whether the relevant 10% threshold for claims of industrial deafness introduced in s 91(3) of the Act applied to the first and to any further claims. The factual circumstances did not raise any question of tinnitus. Relevantly however, at trial Osborn J observed:
It can be seen that s. 91(3) and (4) provide for the assessment of the diminution of binaural hearing determined in accordance with s. 91(4) to be converted to an assessment of degree of impairment of the whole person by way of the formulae set out in s. 91(3).[20]
[18][2002] VSC 368.
[19](2004) 9 VR 470.
[20][2002] VSC 368, [51].
The decision was affirmed on appeal where it was accepted that the scheme of workers compensation generally provided specifically for industrial loss of hearing, albeit in ‘much amended and frustratingly obscure provisions’.[21] The introduction of ss 91(3) and (4) of the Act introduced a new and discrete basis for the assessment of impairment for the purpose of industrial deafness injury.
[21](2004) 9 VR 470, 475 (Eames JA).
Analysis
Both parties proceeded on the basis that the Panel was required to assess a degree of impairment arising from ‘industrial deafness’ whether or not tinnitus was separately identified in the acceptance of injury. This is undoubtedly correct, given the question asked of the Panel which it is bound to answer in accordance with law.[22] But that does not provide an answer as to how an assessment of impairment relating to that injury was required to be undertaken in accordance with s 91 of the Act.
[22]Didani v Downes-Brydon [2021] VSCA 281, [55].
It is important therefore to start with the nature of industrial deafness and to recognise that it is the condition itself that is the injury. That difference itself means that the assessment and determination of impairment from this type of injury is approached in a manner different to other types of injury and that ss 91(3) and (4) of the Act provide the particular method for doing so.
Accordingly, the assessment of industrial deafness is undertaken in accordance with s 91(1)(a)(ii) of the Act.
The issue for consideration therefore is the proper construction of ss 91(3) and (4) of the Act, and how they deal with the effect of tinnitus. Specifically, the issue is whether they permit recourse to the AMA Guides to allow for the effect of tinnitus on hearing beyond that which may be accounted for by the pure tone audiogram findings pursuant to the NAL Procedure.
Section 91(4)(b) of the Act replaces the AMA Guides method for converting hearing thresholds to a percentage hearing loss. The AMA Guides method adds hearing thresholds and converts a total sum to a percentage hearing loss. The NAL Procedure governs the recording of hearing threshold levels and their conversion to percentage hearing losses. The NAL Procedure converts binaural hearing loss at each frequency and adds the percentages as can be seen from Dr Silverstein’s table reproduced at [33].
By conducting an assessment in accordance with the NAL Procedure, further modifications to the calculation of a percentage hearing loss are also imported, including the requirement that audiological testing include testing hearing thresholds between 500 and 4000 Hz with extension where appropriate to 8000 Hz. The additional frequencies will also have a bearing on the conversion to percentages.
However, the percentage hearing loss obtained by the NAL Procedure is not the entirety of the determination required by s 91(4) of the Act. If it were there would be no work for s 91(4)(a)(ii) and the Minister’s approval of the ASOHNS Guidelines. The ASOHNS Guidelines address a number of issues that may be raised as part of the assessment of compensable permanent impairment of the ear. They identify a need to consider other pathologic disorders (as contemplated in Dr Silverstein’s template document). They recommend that the presbycusis correction tables in the NAL Procedure generally be used, as s 91(4)(b) does not specify this. They deal with the way in which a unilateral compensable loss is to be calculated using the NAL Procedure binaural tables but adjusting the figure obtained by the NAL Procedure to arrive at a compensable percentage hearing loss. Similarly they recommend the approach to be taken where both noise-induced loss and constitutional sensorineural loss are present, in particular which frequencies are used for the calculations. The ASOHNS Guidelines provide similar assistance for the clinical assessment of tinnitus. Assistance in that regard specifically references an assessment using the AMA Guides. In this way the effect of the ASOHNS Guidelines is to bring into the ENT assessment a specific aspect of the AMA Guides regarding tinnitus.
In these ways the diminution of hearing – the relevant percentage arrived at by the full application of ss 91(4)(a) and (b) of the Act –will not necessarily be the same figure as the percentage loss of hearing assessed by the NAL Procedure.
As with any exercise of statutory construction the ordinary and grammatical sense of the statutory words, interpreted having regard to their context and the legislative purpose, is the proper starting point.[23] The Court must strive to give meaning to every word of a statutory provision: ‘no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.[24]
[23]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 31[4] (French CJ).
[24]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby and Hayne JJ), quoting Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ).
There is therefore a significance to the distinction between the ‘percentage of diminution of hearing’ that is arrived at by the steps identified in s 91(4) of the Act and the ‘binaural loss of hearing’ that is assessed and determined as part of those steps. A binaural loss of hearing under s 91(4)(b) using the NAL Procedure may be adjusted as a relevant binaural loss in accordance with the ASOHNS Guidelines which have the Minister’s approval for the purpose of s 91(4)(a)(ii). That figure, if either reduced or augmented in accordance with the ASOHNS Guidelines, then becomes the percentage of diminution of hearing. This interpretation gives work to all parts of s 91(4).
The ASOHNS Guidelines are approved for the use of medical assessors. They are not to be interpreted as if they were statutory provisions. They inform the statutory method for assessing impairment but do not themselves prescribe a method. They are directed at the manner of assessment. The manner considers the use of the NAL Procedure and the use of the AMA Guides where each are relevant. The ASOHNS Guidelines do not remove the AMA Guides from all consideration. The specific reference to the AMA Guides does incorporate them in a limited fashion. The description identifies the ways that the effect of tinnitus is permitted within an ENT impairment assessment and those that are beyond it. A plain reading of the ASOHNS Guidelines in my opinion does not limit the effect of tinnitus on the hearing function of the ear to that recorded by a pure tone audiogram.
The conversion of a percentage of diminution of hearing to a degree of impairment of the whole person is then conducted in accordance with s 91(3) of the Act. It takes as its starting point the percentage determined in accordance with s 91(4). The language of s 91(3) is not easy to follow. In each subsection it begins: ‘If the diminution of hearing assessed as a binaural loss of hearing is less than / equal to / more than 10 per cent NAL’. In each case the purpose is to set the relevant degree of impairment of the whole person. NAL is defined as ‘the percentage of diminution of hearing determined in accordance with subsection (4)’. Therefore NAL, although being the acronym for the body publishing the NAL Procedure, is in fact the percentage arrived at by application of s 91(4). It is not the percentage derived from application of the NAL Procedure under s 91(4)(b).
The phrase ‘percentage of diminution of hearing’ also has relevance in s 89(3)(a) of the Act, which forms part of the provision dealing with further diminution of hearing, including the procedure for calculation of claims where a worker makes a claim for a further injury having in the past, received compensation.
The relevant degree of impairment assessed in accordance with s 91(3) of the Act may be further modified if appropriate: to exclude industrial deafness that occurs in circumstances that do not create a liability to pay compensation (s 91(3AAA)) or as applicable where the claim is one for a further injury (ss 91(3AA) or (3A)).
Acceptance of the worker’s primary submission as to the effect of the ASOHNS means it is not necessary to consider the worker’s alternative submission. If I had concluded that the ASOHNS Guidelines excluded any recourse to Chapter 9 of the AMA Guides, then the plaintiff submitted that on the proper construction of s 91(4) of the Act, it applies only to a diminution of hearing and not to other conditions that impair the function of the ear. On this argument tinnitus must be regarded as a separate injury impairing the function of the ear. This argument relies on tinnitus – a sensation of noise in the ear which interferes with the ability to hear – being characterised as a different condition to a loss or diminution of hearing. The plaintiff submitted that as the condition of tinnitus had not been rejected, it was a separate condition that fell for assessment.
One difficulty with this argument is that industrial deafness – the injury being assessed – is defined to include ‘any condition of deafness’. In my view it is inescapable that both ‘hearing loss’ and ‘tinnitus’ as identified on the claim form fall within the definition of industrial deafness, which was the injury that the Panel was required to assess. For the reasons given above, and in particular the need to give meaning and purpose to the different language employed to describe diminution of hearing and loss of hearing, diminution of hearing is a wider term than loss of hearing. Diminution of hearing embraces any condition of deafness, including tinnitus. I reject the argument that tinnitus is not included in a determination of the percentage of diminution of hearing.
The defendant’s submission on this alternate argument was that tinnitus was a part of or a secondary consequence of the relevant injury of noise induced hearing loss. This argument also overlooks the fact that industrial deafness is a defined injury under the Act. That definition does not make ‘hearing loss’ the injury; it makes conditions of deafness caused by relevant exposure to industrial noise the injury. Where relevant, tinnitus is a condition of deafness that is to be assessed.
Conclusion
Therefore in answering question 1, the Panel erred by failing to consider the effect of tinnitus on the hearing function of the ear as provided for by the ASOHNS Guidelines. The ASOHNS Guidelines referred to the ENT assessment under Chapter 9 of the AMA Guides, which remains relevant on the question of any specific allowance to be made for tinnitus in the presence of hearing loss. That measurement is informed by the severity of the condition and the degree to which it interferes with the hearing function of the ear. It permits an additional allowance of up to 5% before conversion to WPI. Under s 91(4) of the Act, that allowance would form part of the percentage diminution of hearing, together with other adjustments to the NAL Procedure required by application of s 91(4)(a)(ii).
Accordingly, in conducting its assessment for industrial deafness, the Panel should have made any additional allowance of up to 5% for the effect of tinnitus as it considered appropriate, in addition to the binaural loss of hearing assessed and determined in accordance with the NAL Procedure. This overall figure constitutes the percentage of diminution of hearing in accordance with s 91(4) of the Act, and it is this figure that should be converted to a degree of whole person impairment in accordance with the formulae in s 91(3) of the Act.
Had the Panel followed this method, there would have been a real possibility that the plaintiff’s degree of whole person impairment would have been at least 10%. Accordingly, I will remit the question back to a differently constituted medical panel to conduct the assessment in accordance with the law.
I will hear from the parties in respect of the appropriate orders.
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