Scott v Amarcon Pty Ltd

Case •

[2022] NSWPICMP 102

•

3 May 2022
DETERMINATION OF APPEAL PANEL
CITATION: Scott v Amarcon Pty Ltd [2022] NSWPICMP 102
APPELLANT: Stephen John Scott
RESPONDENT: Amarcon Pty Ltd
APPEAL PANEL: Member Jane Peacock
Dr Paul Niall
Dr Brian Williams
DATE OF DECISION: 3 May 2022
CATCHWORDS:  WORKERS COMPENSATION- Industrial deafness; appellant alleged error in the failure of the Medical Assessor (MA) to include losses at 1500 Hz; the Panel found MA’s reasoning did not explain adequately why the decline at 1500Hz, which he says includes loss that is the result of noise exposure, should not be included in the circumstances of this case which involve an extremely length period of noise exposure, namely, 49 years of noise exposure as a boilermaker, and, where there has already been an equation of the losses at the right ear to the left to exclude non-occupational noise exposure together with the mandatory statutory deduction to allow for presbycusis; Held- Medical Assessment Certificate revoked.   

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 4 January 2022 Mr Stephen John Scott (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
    Dr Sylvester Fernandes, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 December 2021.

  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. The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.

  5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 WorkCover Medical Assessment Guidelines 2006.

  2. The appellant did not request that he be re-examined by a MA member of the Appeal Panel. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error in the MAC, there was enough material before the Appeal Panel to enable a determination to be made.

EVIDENCE

Documentary evidence

  1. The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination. 

Medical Assessment Certificate

  1. The parts of the medical certificate given by the MA 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 MA as follows:

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

    ·        The nature and extent of hearing loss suffered by a worker (319(e))

    ·        the degree of permanent impairment of the worker as a result of an injury (s319(c))

    ·        whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

    ·        whether the impairment is permanent (s319(f))

    ·        whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

    Date of injury: 10/05/2021 (deemed)

    Body parts/systems referred: Noise Induced Hearing loss

    Method of assessment: Whole Person Impairment”

  4. The MA issued a MAC certifying as follows:

Injury deemed to have happened on: Frequency Hz

Left dB HL

Air        Bone

 Right dB HL
Air          Bone 		Total % BHI Occupational % BHI
10/05/2021 (deemed) 500 25 20 90 40 5.0 0.0
1000 20 20 85 20 5.0 0.0
1500 25 20 85 60 4.9 0.0
2000 55 55 80 70+ 9.0 8.4
3000 60 60 80 70+ 6.6 6.3
4000 65 60 80 70+ 7.0 6.7
37.5 21.4
TOTAL % BHI: 37.5
Less Pre-existing  non-related loss(of 16.1): 21.4
Less Presbyacusis correction(of 2.4): 19.0
Add % of severe tinnitus(of 1.0): 20.0
Adjusted total % BHI: 20.0

Resultant total BHI of  20.0%  =  10% whole person impairment (Table 9.1)

  1. The worker appealed.

  2. In summary, the appellant’s submissions on appeal were that the MA had made a demonstrable error in the failure to include the losses at 1500Hz as due to noise exposure in circumstances where the appellant was exposed to noise exposure of 49 years duration.

  3. In summary, the respondent submitted that the MA did not make a demonstrable error and the MAC should be confirmed. The respondent submitted that the MA gave reasons for his decision not to include the losses at 1500Hz and that the “shape of audiogram including the relative stable loss between 20 and 30dB at 250-1500Hz before the precipitous fall between 1500 and 2000Hzis entirely consistent with the findings of the MA that hearing loss below 2000Hz is not employment related”.

  4. The MA recorded a history as follows:

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

    He states that he has been exposed to loud noise over a period of time in the workplace contributing to a gradual and progressive hearing loss

    Source of hazardous steady- state, fluctuating, intermittent and impact noise at such employment(i.e. on balance of probabilities these employments have the necessary “incidents, tendencies and characteristics” so as to give rise to a real risk of a person suffering noise induced hearing loss there from):  grinders, croppers, hammers, drills

    Note: Some relevant sourced typical noise levels for such exposures are:

    drill at 94 dBA (McClymont & Simpson (1989)); grinder at 85 dBA (NIOSH (1972)); hammer at 105 dBA (NIOSH (1972))

    He was supplied ear protection for approximately 31 years when in very noisy situations.

    There is no history of noisy hobbies or amusements sufficient to cause material noise exposure.

    There is no history of extra-work organic solvents exposure.

    There is no history of ear disease or ear surgery or significant past head injury or family history of deafness or exposure to ototoxic medication.

    There is no history of military service.

    ·    Present treatment: Hearing aids

    ·    Present symptoms:

    Hearing impairment: gradual, progressive for approximately 20 years. A sudden aggravation on hearing loss on right side for 6 years

    Otalgia: denied   Vertigo: denied

    Otorrhoea: denied  

    Tinnitus: for 10 years, constant, unmaskable, high pitched, does not disturb his sleep pattern, does interfere with activities of daily living and he has not sought medical treatment specifically for the tinnitus although hearing aids if provided for a hearing loss may sometimes provide some benefit.

    ·    Details of any previous or subsequent accidents, injuries or condition: Nil

    ·    General health:

    Hypertension

    Diabetes

    ·    Work history including previous work history if relevant:

    At the age of sixteen, Mr. Stephen John Scott commenced an apprenticeship as a boilermaker/welder for 4 years. This employment was noisy. Hearing protection was provided. Subsequent employment information volunteered is as follows:

WORKED AT (AS) YEARS ±40h/w1 NOISY2 C/I3 DISTANCE4 PROTN5
Boilermaker/welder (various employers) 24 yes yes both operating last 10 years
Jeskah/Amarcon P/L (boilermaker/welder) 21 yes yes both operating yes

1 hours per week The effect of occupational noise on an individual depends on, a varying type of noise, varying frequency characteristics of noise, varying intensity of noise, varying duration of noise and individual susceptibility. To accommodate these factors and as per current available empiricism (ISO 1999: 2013 Means; NAL Tables), a 40h/w ± gauge is appropriate unless individual circumstances are strikingly different.

± more or less

< Less than

2 Criteria: employees within one metre of each other have to raise voice (or shout) to be heard. The criteria for noisy employment were explained to  the claimant.

(Fact: At 90 dB it is possible to hear each other with voices raised and at 100 dB it is only possible to hear each other when shouting loudly. (extrapolated from  Webster JC. Speech interference aspects of noise. In Noise and Audiology, ed. Lipscomb DM Baltimore: University Park Press (1978) pp 193-228; Suter A. 1986. Hearing conservation. In: Berger E, Ward W, Morrill J, Royster L (Editors).Noise and hearing conservation manual. Akron, OH: American Industrial Hygiene Association, p 7)

3 Continuous and/or Impact noise

4 Approximate working distance from noise source in metres

5 Ear protection supplied. Hearing protection will frequently have little impact on the degree of noise induced hearing loss. . (Tikka, C.;Verbeek, J. H.;Kateman, E.;Morata, T. C.;Dreschler, W. A.;Ferrite, S. Interventions to prevent occupational noise-induced hearing loss Cochrane Database Syst Rev. 2017Vol 7; p CD006396)”

  1. The MA conducted a physical examination and recorded as follows:

    “Both tympanic membranes are intact and of normal appearance. The Rinne test is negative on the right side and positive on the left side and the Weber test is lateralized to the left. Otherwise there is nil significant on otorhinolaryngological examination relevant to the hearing loss.”

  2. The MA conducted an audiological examination and recorded as follows:

    AUDIOGRAM

    [Image unable to replicate]

  3. The MA noted in respect of the audiogram as follows:

    “Audiogram on 01/12/2021

    Testing: He responded well to the subjective aspects of the audiogram carried out in accordance with the Workcover Guides Chap 9.8 p 43. An accurate hearing test was achieved, for there was very good intratest reliability.”

  4. The MA summarised the injury and his diagnosis as follows:

    “● summary of injuries and diagnoses:

    (Key: bass: <1 KHz; midrange: 1 – 2 KHz; treble: > 2 KHz)

    1.     Noise induced hearing loss in the upper middle and treble frequencies and

    2.     an excess loss of uncertain origin (non occupational*) in the bass and lower middle frequencies and

    3.     age related hearing loss and

    4.     an additional excess loss of unknown origin (non noise induced) on the right side

    *       There are many possible causes of non-occupational hearing loss.  The validity of the finding of a non-occupational contribution to a hearing loss is not conditional on the identification of the medical aetiology thereof, be that identification precise or otherwise.  Nor is it necessarily clinically difficult to assess that a component or all of a hearing loss (including where it may be of uncertain medical aetiology or deafness due to an unknown cause or causes) is non-occupational. This depends on the circumstances of the particular case. Also, in hearing loss cases the deduction is not for pre-existing conditions, but it is for hearing loss not due to noisy employment. It can usually be calculated exactly and the 10% deduction used in other compensation claims is not often needed. Thus, in this case, there is no necessity to explain the cause of the low tone hearing.”

  5. The MA explained his assessment as follows:

    “Mr. Scott has an asymmetric hearing loss, with the right side being worse than the left side.

    Noise induced hearing loss is essentially symmetric, as in most occupational environments, the ears are exposed to similar sound levels bilaterally, even when the apparent noise source comes from one side. The subject thinks the noise is all on one side because of the precedence effect, which causes a perceptual lateralisation of the source to the ear getting the higher exposure, even when the difference is only one dB or so.

    In the instant case, the right ear is hence equated to the left. As a result, the hearing loss on the left side has been taken into consideration for the calculation of noise induced hearing loss on the right side. He has been instructed to seek further attention for the elucidation of the causative element in the excess hearing loss which is not noise induced. (See also Dobie RA,  Does Occupational Noise Cause Asymmetric Hearing Loss? Ear Hear 2014 Sep-Oct; 35(5):577; See also Pereira v Siemens Limited [2016] NSWWCCMA 9 (Pereira) and The UGL Rail Services Pty Ltd v Attard [2016] NSWSC 911.)

    The frequencies below 2.0 KHz are not included in the calculation because:

    1. The precipitous decline from 1.5KHz and the magnitude of the fall at 2KHz is not at all indicative of a totally noise induced hearing loss (Position Statement on Noise induced Hearing Loss. American College of Occupational and Environmental Medicine 2002; Taylor W, Pearson JC, Mair A, Burns W (1965) Journal of the Acoustic Society of America, 38, 113; Burns W, Hinchcliffe R, Littler TS (1968) Noise and Man. London: John Murray).

    Even the totality of the losses on balance of probability at 3 and 4 KHz is also not wholly attributable to noise exposure. However as there is no scientifically legitimate method of apportioning each such pathology, I have considered the whole loss at each of these frequencies (2, 3 and 4 KHz) as due to occupational noise exposure and ignored that at the still lower frequencies, as noise will more likely than not affect the frequencies of 2, 3 and 4 kHz.

    Hence after consideration of the nature and duration (immission levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 2, 3 and 4 KHz are caused by his occupational noise exposure.

    Shone v Country Energy (2007) NSW WCC MA 18 is perennially implored as authority for inclusion of the lower frequencies, in an effort to ascribe to Shone a ‘regulatory science’ status. It is important to understand that it is not possible to impart the ‘bright-line’ of certainty of law to an essentially fluid subject (that is a function of several variables) requiring a clinical judgement (See also ‘Richardson’ [2013] NSW WCC MA 56) and fundamentally requires each case to be judged on its merits.

    In making that assessment I have taken account of the following matters:-

    1.Type and duration of noise exposure (immission levels)

    2.Type of hearing impairment

    3.Mode of onset and progression

    4.Shape of audiogram

    5.Presence of a dip or “bulge” around 4 kHz

    6.Clinical picture

    7.No competing diagnoses and complications.”

  6. The MA had regard to the other evidence before him and made brief comments as follows:

    “Dr. P. Macarthur

    1. Dr. P. Macarthur obtained slightly higher thresholds

    Being a behavioural test, it should be obvious that when hearing levels on contemporary serial audiograms differ in the absence of an obvious and identifiable intervening contributory causative incident detrimental to hearing, the best recorded audiogram is likely to be the most precise and correct one.

    Dr  TB Raj

    1.   Dr  TB Raj also obtained higher thresholds

    These observations are mentioned for the benefit of the instructing parties. They have no impact on my assessment

    A templated approach is employed deliberately to avoid densely distractive narration (with the associated ambiguity) and to eliminate areas of interpretive flexibility and also to provide all the relevant information to the reader with minimal facility.

    It is accepted that this methodology may not appeal to some medical practitioners who have a propensity and tendency for ad hoc-ery and ipse dixit-ery.”

  7. The appeal panel notes that both other experts whose opinions were in evidence before the MA, Dr Macarthur and Dr Raj, included the losses at 1500Hz.

  8. In dealing with the specific question of deductibility for pre-existing condition, abnormality or injury the MA reasoned as follows:

    “In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

    1. an excess loss of uncertain origin (non occupational) in the lower frequencies and

    2. age related hearing loss and

    3. an additional excess loss of unknown origin (non noise induced) on the right side

    The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:

    In hearing loss cases the deduction is not for pre-existing conditions, but it is for hearing loss not due to noisy employment. It can usually be calculated exactly and the 10% deduction used in other compensation claims is not often needed.

    The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)

    N/A

    Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is X for the following reasons:

    N/A

    In my opinion the deductible proportion is X for the following reasons:

    N/A”

  9. To assess impairment from noise induced hearing loss, the MA took into account the losses at 2000 kHz to 4000 kHz inclusive. That is, he excluded the losses at 1500Hz and below. The MA’s approach differed from that of the other experts whose opinions are in evidence, Dr Macarthur and Dr Raj, both of whom included the losses at 1500Hz. The MA has said that the “precipitous decline from 1.5KHz and the magnitude of the fall at 2KHz is not at all indicative of a totally noise induced hearing loss”. On this basis he excludes 1500Hz and below but includes 2000Hz and above. However the MA’s reasoning does not explain adequately why the decline at 1500Hz, which he says includes loss that is the result of noise exposure, should not be included in the circumstances of this case which involve an extremely length period of noise exposure, namely, 49 years of noise exposure as a boilermaker,  and, where there has already been an equation of the losses at the right ear to the left to exclude non-occupational noise exposure together with the mandatory statutory deduction to allow for presbycusis.

  10. The Panel has accordingly found that the MA has erred in not including the loss at 1500 H. Including the loss at 1500 HZ results in the following recalculation and resultant certification:

Injury deemed to have happened on:

Frequency Hz

Left dB HL

Air        Bone

Right dB HL

Air          Bone

Total % BHI

Occupational % BHI

10/05/2021 (deemed)

500

25

20

90

40

5.0

0.0

1000

20

20

85

20

5.0

0.0

1500

25

20

85

60

4.9

1.4

2000

55

55

80

70+

9.0

8.4

3000

60

60

80

70+

6.6

6.3

4000

65

60

80

70+

7.0

6.7

37.5

22.8

TOTAL % BHI: 37.5

Less Pre-existing  non-related loss(of 16.1): 14.7

Less Presbyacusis correction(of 2.4): 2.4

Add % of severe tinnitus(of 1.0): 1.0

Adjusted total % BHI: 21.4

Resultant total BHI of  21.4.0%  =  11% whole person impairment (Table 9.1)

  1. For these reasons, the Appeal Panel has determined that the MAC issued on 6 December 2021 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

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 Dr Sylvester Fernandes 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:-

Injury deemed to have happened on:

Frequency Hz

Left dB HL

Air        Bone

Right dB HL

Air            Bone

Total % BHI

Occupational % BHI

10/05/2021 (deemed)

500

25

20

90

40

5.0

0.0

1000

20

20

85

20

5.0

0.0

1500

25

20

85

60

4.9

1.4

2000

55

55

80

70+

9.0

8.4

3000

60

60

80

70+

6.6

6.3

4000

65

60

80

70+

7.0

6.7

37.5

22.8

TOTAL % BHI: 37.5

Less Pre-existing  non-related loss(of 16.1): 14.7

Less Presbyacusis correction(of 2.4) 2.4

Add % of severe tinnitus(of 1.0): 1.0

Adjusted total % BHI: 21.4

Resultant total BHI of  21.4.0%  =  11% whole person impairment (Table 9.1)

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002

Jane Peacock

Member

Paul Niall

Medical Assessor

Brian Williams

Medical Assessor

3 May 2022

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Campbelltown City Council v Vegan [2006] NSWCA 284
UGL Rail Services Pty Ltd v Attard [2016] NSWSC 911