Stanjovic v Falcones Pty Limited - [2022] NSWPICMP 105

DETERMINATION OF APPEAL PANEL
CITATION:	Stanjovic v Falcones Pty Limited [2022] NSWPICMP 105
APPELLANT:	Rajna Stanjovic
RESPONDENT:	Falcones Pty Limited
APPEAL PANEL:	Member Paul Sweeney Dr Robert Payten Dr Joseph Scoppa
DATE OF DECISION:	6 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Worker appeals from Medical Assessment Certificate (MAC) certifying whole person impairment for industrial deafness alleging error in calculations; an incorrect history in respect of hearing protection; and demonstrable error by the Medical Assessor (MA) in failing to take into account deafness in the low tones below 1500Hz in assessing the degree of industrial deafness; Held- Panel accepts that the MA made an error in calculation and took an incorrect history; on reassessment Panel determines that features of the audiograms were not consistent with noise induced hearing loss; new MAC issued excluding the losses below 1500Hz.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2021, Rajna Stanjovic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 9 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 assessment was made on the basis of incorrect criteria,
· 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 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 the PIC Rules.
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).

RELEVANT FACTUAL BACKGROUND

Between 1980 and 2018, the appellant was employed in work that exposed her to noise. She developed noise induced hearing loss. It is common ground that she was exposed to noise which had the potential to damage her hearing throughout her employment.
In 2010, the appellant received compensation for 10.4% binaural hearing loss. Her last noisy employer at that time was Bonds Industries Limited. Between 2011 and 2018, she was employed by Falcones Pty Ltd (the respondent). She has not worked since 2018.
By her statement the appellant says that during her employment with the respondent she was exposed to noise from heavy machinery, industrial mixers, rollers and conveyors, slicers, packers, industrial fans, alarms and signals and other surrounding noise associated with the baking of bread. She states that she was not provided hearing protection during her employment.
On 18 February 2021, the appellant was assessed by Dr Sharad Tamhane, an ear nose and throat specialist, at the request of her solicitor. By a report dated 8 March 2021, Dr Tamhane expressed the opinion that the appellant had 39.8% binaural hearing loss. From this he deducted the previously compensated BHL of 10.4%. He expressed the opinion that the appellant suffered 15% whole person impairment (WPI) as a result of industrial deafness.
In reaching this opinion, Dr Tamhane stated that given the appellant’s long history of exposure to loud noise:
“after weighing all probabilities and giving her the benefit of the doubt, I would attribute her sensorineural hearing loss in the 500Hz, 1000Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz frequencies to noise induced hearing loss.”
Dr Kenneth Howison, an ear nose and throat specialist, saw the appellant at the request of the respondent’s insurer on 21 May 2021. By a report of 26 May 2021, Dr Howison expressed the opinion that the appellant had sustained a further binaural hearing loss of 18.1% since her last claim in 2010 and this converted to an increased WPI of 9%.
The different opinions of Dr Tamhane and Dr Howison in respect of the degree of WPI as a result of industrial deafness gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. A delegate of the President referred the dispute to Dr Harrison for determination. It is from his certification of the degree of industrial deafness that the appellant appeals.

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 PIC Rules.
As a result of the preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. Neither party to the appeal sought a further medical examination by a member of the panel.
Further, it was not suggested that the audiogram performed for Dr Harrison at the time of his medical assessment was inaccurate or unreliable. Accordingly, although the panel found error in the MAC in the history recorded by the MA and in his calculations of binaural hearing loss, the specialist medical practitioners on the panel were able to re-assess binaural hearing loss as a result of noise exposure by reference to that audiogram.

EVIDENCE

The appeal panel had 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

The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated here in full but have been considered by the panel. In summary, the appellant submitted there were both factual and legal errors in the way in which the MA assessed binaural hearing loss.
In respect of the assertion of incorrect criteria, the appellant asserted that the MA had not assessed her in accordance with s 17 of the Workers Compensation Act 1987 (the 1987 Act) or the Guidelines. It was impermissible for the MA “to make a separate evaluation of hearing loss sustained after the prior settlement” in 2010. Once a deemed date of injury pursuant to s 17 was accepted, the hearing loss is deemed to have occurred on that date without regard to the actual onset and progression of the hearing loss. The appellant referred to Fairfield City Council v Deguara [2019] NSWWCCPD 1 (18 January 2019) in support of that proposition.
In respect of demonstrable error, the appellant asserts three discrete errors. First, in calculating binaural hearing loss the MA recorded that “pre-existing non-related hearing loss” was 14.5%. As the MA only excluded hearing loss at 500 and 1000Hz from his assessment of industrial deafness, the non employment related hearing loss should have been 10.8%
Secondly, the MA erred in recording that the appellant wore hearing protection during her employment with the respondent. This was inconsistent with her statement and with the history recorded by both Dr Tamhane and Dr Howison. The appellant continued:
“This error means the medical assessor did not have accurate information about the nature and intensity of the exposure to noise when forming an opinion as to the extent of the non-occupational hearing loss”.
By a supplementary statement, dated 21 December 2021, the appellant says that the MA’s recording that “hearing protection was worn” is incorrect. She says that she told the MA at the consultation that:
“Falcones tried to implement hearing protection but they found it in the bread a few times and so we were not able to wear it.”
The third error asserted by the appellant is that the MA failed to “consider the medical opinions regarding the extent of non-occupational hearing loss”. In this respect the appellant notes that both Dr Tamhane and Dr Howison expressed the opinion that all hearing frequencies had been damaged by unacceptable noise levels during the course of the appellant’s employment and all frequencies should be used in calculating noise induced hearing loss. Moreover, both specialists gave substantial reasons for this approach. The MA erred in “dismissing these opinions”.
The appellant referred to Shone v Country Energy (2007) NSWWCCMA 18 (Shone) in support of the submission. In that case, the medical appeal panel accepted that hearing loss in the lower frequencies can occur with significant noise exposure for periods longer than 28 years. It continued:
“In this case the worker has significant noise exposure for 38 years and both Dr Tamhane and Dr Howison accepted the hearing loss in the lower frequencies was caused by noise exposure”.
In view of the errors addressed above, the appellant submitted that the MAC should be revoked.
After a discussion of the meaning of incorrect criteria, the respondent asserted that the MA had not based his assessment on incorrect criteria. The criteria he adopted were those in the Guidelines.
The respondent concedes the error made by the MA in stating that non-related hearing loss was 14.5% rather than 10.8%. However, it submitted that the “calculation error would have been more appropriately dealt with by way of Application for Reconsideration”.
In respect of the alleged incorrect history in respect of hearing protection, the respondent appears to accept the error. However, it asserts as the MA’s assessment of the appellant’s occupational and non-occupational exposure was based on the medical evidence, presumably including the audiogram, it was not a demonstrable error. It submitted that:
“Any errors in the MA’s history did not lead to an error in the MAC which is ‘readily apparent’”.
The respondent then argues that the supplementary statement of the appellant dated 21 December 2021 does not constitute “additional relevant information”. It relies upon the reasoning in Petrovic v B C Serv No. 14 Pty Ltd & Ors [2007] NSWSC 11546 and Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88. It submits that the statement is not of “prima facie probative value” and should not be admitted into evidence.
In respect of the assertion that the MA failed to consider the medical opinions of the qualified ear nose and throat specialists, the respondent submits that the MA was entitled to form his own opinions on the issues raised in the case and he was not bound to accept the opinions of the experts qualified by each side. It followed that the MA’s decision to differ from the opinions of Dr Tamhane and Dr Howison in respect of the inclusion of the lower frequencies in the assessment was not a demonstrable error.
Finally, the respondent submitted that the facts in this case were different to those in Shone. It referred to Thomas Carney v Pacific National (NSW) Pty Ltd [2021] NSWWCCMA 36 (Carney), where the panel stated that Shone did not mean that the lower frequencies must be included if the worker has had a lengthy noise exposure. “Rather lower frequencies are to be included if the audiometric configuration is consistent with the industrial deafness and if there is a long period in noisy employment”.
The respondent noted that a report of Dr Tamhane in 2010 found that there was 0.0% BHI loss in the lower frequencies. It also noted that the “industrial deafness typically causes a bilaterally symmetrical sensory neural hearing loss from low to high tones”.
The respondent submitted that in this case the appellant’s audiogram was “not consistent with a typical industrial-deafness audiogram”. It was, therefore, clear that the MA had exercised his clinical expertise by not including the lower frequencies in his assessment of occupational hearing loss in this case. He gave appropriate reasons for his decision to exclude the lower tones.

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
It was accepted by the respondent that the MA made two factual errors in his certificate. First, in performing his calculations of hearing loss he recorded that the appellant had 14.5% “BHI non-related hearing loss” whereas the figure should be 10.8%. By this error of addition, the MA found 20.8% for occupational BHI, whereas it should have been 24.5%. After allowing for tinnitus of 1% the adjusted BHI should have been 25.5% and not 21.8% and the WPI should have been13% rather than 11%.
Secondly, the MA recorded that the appellant wore hearing protection during her employment with the respondent. This may be a typographical error. Nonetheless, it is plainly incorrect.
The panel doubts that the latter error by the MA undermines his reasoning and certification of BHI and WPI. On the other hand, given the error in calculation and the issues raised by the appellant in respect of the MA’s failure to include the lower frequencies in his assessment, it is appropriate that the panel reassess the degree of industrial deafness resulting from injury and issue a new MAC.

Additional evidence

The respondent has objected to the appellant’s supplementary statement dated 10 July 2021 being received into evidence. For the reasons given in Pitsonis and Lucacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 a statement by the worker after the MAC alleging failure by the MA to correctly record a history will rarely be of sufficient relevance and weight to admit it into evidence. In this case, however, the contents are entirely consistent with the appellant’s earlier statement and with the histories of the qualified medical practitioners. In the circumstances, the interests of justice weigh in favour of its admission as additional relevant information.
It is unnecessary, however, to rely on that statement to reach the conclusion that the MA erred in his history relating to the wearing of hearing protection. His failure to address the difference between his recorded history and the appellant’s written evidence and the history she gave to the other medical practitioners would be a sufficient ground to reach a conclusion of error.
In reassessing hearing loss the panel intends to assume that the appellant did not wear hearing protection throughout her working life.

Lower frequencies

Each of the ENT specialists who have examined the appellant gave explicit reasons for including or excluding the lower frequencies, in this case the frequencies at or below 1500Hz, in the calculation of the appellant’s binaural hearing loss. Dr Tamhane said this:
“Noise induced hearing loss normally affects the 2000Hz, 3000Hz and 4000Hz frequencies but in patients who have had prolonged exposure to loud noise for 30 to 35 years and who have not been able to wear adequate ear protection, the hearing loss can gradually creep into the mid and lower tones of 1500Hz, 1000Hz and 500Hz. Mrs Stanjovic has been exposed to continuous loud noise for over 35 years and has not been able to wear any ear protection. Considering his history [sic] of exposure to continuous loud noise, looking at the distribution of her pure tone thresholds in the speech frequencies in both ears, after weighing all probabilities and giving her the benefit of the doubt, I would attribute her sensorineural hearing loss in the 500Hz, 1000Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz frequencies to noise induced hearing loss.”
As part of his opinion, Dr Howison said this:
“After consideration of the cumulative noise emission levels to which Mrs Stanjovic has been exposed to, I would consider that all frequencies have been damaged by unacceptable noise levels and I have used all frequencies in the calculation for noise induced hearing loss.”
In the MAC the MA stated that his history and examination were consistent with a diagnosis of occupational hearing loss. However, he continued:
“but the profile of the audiogram is not consistent with this being the sole cause of hearing loss. This is because in an audiogram of established occupational deafness, the hearing loss slopes downward with a curve convex upwards from left to right except for some possible preservation of the higher frequencies i.e. above 4000 cycles per second (as demonstrated in the accompanying figure from the book “Medical-Legal Evaluation of Hearing Loss” by Robert Dobie – NIPTS means: “noise-induced permanent threshold shift” which is industrial deafness) except in cases of extremely long and severe noise exposure the lowest frequencies are preserved. The worker’s audiogram does not have these characteristics. Hence it is not consistent with a diagnosis of solely industrial deafness. This is because there has been no preservation of any of the lower frequencies (that is all of them show hearing loss) which is exceptional in occupational hearing loss and because the hearing loss is flat between 1500cps and 3000cps. She has, however, been subject to what sounds like fairly significant noise exposure and I believe, on the balance of probabilities, that she has suffered some hearing loss due to it and that there has probably been enough noise exposure to damage at least some of the lower frequencies. So I have apportioned the occupational hearing loss to the frequencies 1500cps and above. This gives 20.5 BHI of occupational hearing loss.”

The role of the panel in this case is to assess the degree of the appellant’s hearing loss resulting from exposure to occupational noise. In performing this task, it is necessary to exclude any part of the hearing loss which is not attributable to occupational noise. That hearing loss does not result from loss of hearing caused by a gradual process in accordance with s 17 of the 1987 Act.
The panel accepts that it cannot assume that the losses at 500, 1000 and 1500Hz are to be disallowed on the basis that these frequencies are not generally involved in noise induced hearing loss, although that is true. However, any such assumption is inconsistent with the Guidelines. Accordingly, whether these frequencies should be considered when assessing occupational noise exposure depends on the entirety of the facts in the case including the nature and duration of noise exposure, and the configuration of the audiogram. It is also relevant to consider the extent of the losses in the low frequencies in relation to the losses in higher frequencies to determine whether they are consistent with being noise induced.
This approach is consistent with that of the medical appeal panels in Shone and Carney and in the many other cases where the dispute between the parties has related to whether or not the frequencies at and below 1500 Hz should be included in the assessment of industrial deafness.
In reassessing the degree of industrial deafness, the panel has considered the opinions of Dr Howison and Dr Tamhane that the cumulative noise emissions to which the appellant was exposed were sufficient to damage all frequencies. However, the panel has concluded that a consideration of the entirety of the evidence in this case leads to a contrary conclusion. It has concluded that it would be appropriate to accept that the loss at 1500Hz relates to industrial deafness but not the lower frequencies. In that respect, the panel has reached the same conclusion as the MA.
In the opinion of the ear nose and throat surgeons on the panel, the audiogram in this case is not consistent with the appellant’s hearing loss being entirely attributable to occupational noise exposure. First, the losses between 1000Hz and 4000Hz form a relatively straight line, rather than a gently descending slope as one might expect if the loss was caused by the occupational noise exposure described by the appellant.
Secondly, the audiogram demonstrates very little preservation of hearing in the lower frequencies as compared to the high frequencies. The losses at 1500, 2000 and 3000Hz are greater than the losses at 4000Hz .
The two audiograms performed by Dr Tamhane were considered by the Panel. The first in 2010 showed a 10 dB loss at 500Hz in both ears and a 40 dB loss at 4000Hz in both ears. The second audiogram in 2021 showed that the hearing loss at 500Hz had deteriorated by 20 dB to 30 dB in the right ear and by 25 dB to 35 dB in the left ear. During this time the hearing at 4000Hz had deteriorated by only 15 dB in both ears to 40 dB. The greater deterioration in the hearing for the low frequency of 500Hz as compared to the high frequency of 4000Hz is not consistent with noise induced hearing loss where the high frequencies should be affected more than the low frequencies.
Similarly, between 2010 and 2021, the deterioration in hearing at 1000Hz was also greater than the deterioration at 4000Hz in both ears which is also inconsistent with noise trauma.
The panel concluded that there was a cause other than noise trauma for the low frequency losses at 500Hz and 1000Hz. The panel noted that neither Dr Tamhane or Dr Howison gave compelling reasons for the disproportional loss of hearing involving the lower frequencies as compared to the high frequencies and why this was consistent with noise induced hearing loss.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 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 Henley Harrison and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

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

Notional date of injury	Frequency Hz	Left dB HL Air Bone	Right dB HL Air Bone	Total % BHI	Occupational % BHI
8 June 2018 (deemed)	500	30	30	2.8	0
1000	40	40	8.0	0
1500	50	50	9.7	9.7
2000	50	50	7.3	7.3
3000	50	50	4.8	4.8
4000	45	40	2.7 -----	2.7 -----
35.3	24.5
TOTAL % BHI: 35.3
Less Pre-existing non-related loss: 10.8
Less Presbyacusis correction: 0
Add % of severe tinnitus: 1.0
Adjusted total % BHI: 25.5
Resultant total BHI of 25.5 % = 13% whole person impairment (Table 9.1).Less previous claim of 10.4%(25.5%- 10.4%) = BHI of 15.1% = WPI 8%

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

Paul Sweeney
Member
Joseph Scoppa

Medical Assessor

Robert Payten

Medical Assessor

6 May 2022