Scott v Amarcon Pty Ltd - [2022] NSWPICMP 102

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

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

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 WorkCover Medical Assessment Guidelines 2006.
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

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMP 102
Decision Date: 3 May 2022

CaseChat Overview and Summary

The case of Scott v Amarcon Pty Ltd involved the appellant, Scott, challenging the decision of a Medical Assessor (MA) to exclude the loss at 1500 Hz in his assessment of Scott's industrial deafness. The dispute was heard by the NSW Civil and Administrative Tribunal (NCAT). The appellant argued that the MA had erred in not including the losses at 1500 Hz, despite Scott's 49 years of noise exposure as a boilermaker. The MA's assessment equated the losses at the right ear to the left to exclude non-occupational noise exposure and applied a mandatory statutory deduction to account for presbycusis. The NCAT was tasked with determining whether the MA's reasoning was adequate and whether the exclusion of the loss at 1500 Hz was justified.

The legal issues before the NCAT included whether the MA's decision to exclude the losses at 1500 Hz was correct and whether the MA's reasoning adequately explained the basis for this exclusion. The NCAT considered the MA's explanation that noise-induced hearing loss is generally symmetric, and the left ear's hearing loss was considered for the calculation of noise-induced hearing loss on the right side. The NCAT also considered the MA's reasoning that the frequencies below 2.0 KHz were not included in the calculation because the precipitous decline from 1.5 KHz and the magnitude of the fall at 2 KHz were not indicative of a totally noise-induced hearing loss. The NCAT examined the MA's consideration of several factors, including the type and duration of noise exposure, the type of hearing impairment, the mode of onset and progression, the shape of the audiogram, and the presence of a dip or "bulge" around 4 kHz.

The NCAT found that the MA's reasoning did not adequately explain why the decline at 1500 Hz, which the MA acknowledged included loss that resulted from noise exposure, should not be included in the circumstances of this case. The NCAT noted that the MA had taken into account the extremely lengthy period of noise exposure and the mandatory statutory deduction for presbycusis but failed to adequately address the exclusion of the loss at 1500 Hz. The NCAT concluded that the MA's assessment did not meet the required standard and revoked the Medical Assessment Certificate. The NCAT found that the MA's decision to exclude the losses at 1500 Hz was not adequately justified and that the MA's reasoning did not adequately explain the basis for this exclusion.

The NCAT ordered the revocation of the Medical Assessment Certificate issued by the MA. The NCAT directed that the matter be remitted to a different MA for reassessment, taking into account the NCAT's findings and the need for adequate reasoning in the assessment of industrial deafness. The NCAT's decision emphasized the importance of adequate reasoning in medical assessments and the need for each case to be judged on its merits, particularly in cases involving complex medical issues such as industrial deafness. The NCAT's decision underscored the importance of considering all relevant factors in the assessment of industrial deafness and the need for medical assessors to provide clear and adequate reasoning for their decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 picture7.No competing diagnoses and complications.”