Tal v CDR ACN Pty Ltd (formerly known as Civil Foundations Piling Pty Ltd
[2022] NSWPICMP 305
•27 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tal v CDR ACN Pty Ltd (formerly known as Civil Foundations Piling Pty Ltd [2022] NSWPICMP 305 |
| APPELLANT: | Janos Tal |
| RESPONDENT: | CDR ACN Pty Ltd (formerly known as Civil Foundations Piling Pty Ltd) |
| APPEAL PANEL: | Member William Dalley Medical Assessor Joseph Scoppa |
| Medical Assessor Brian Williams | |
| DATE OF DECISION: | 27 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against the assessment of hearing impairment which did not include loss below 2000 Hz; alleged failure to provide reasons or properly address proportion of non-industrial impairment, failure to apply section 65A of the Workers Compensation Act 1987 (1987 Act) and failure to take account of hearing loss below 2000 Hz; Held — Medical Assessor had provided appropriate reasons for excluding losses below 2000 Hz and had appropriately assessed noise induced hearing loss in accordance with the shape of the audiogram and the degree of asymmetry; section 65A of the 1987 Act was not relevant to the determination of noise induced hearing loss; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 April 2022 the appellant, Janos Tal, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 April 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds 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, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
After arriving in Australia in 1970, Mr Tal worked as a labourer and driver/operator until 1977 when he commenced employment with a manufacturer on an assembly-line. He continued in that employment until 1980 when he commenced employment with the State Rail Authority, working as a fettler, driver and plant operator. After leaving that employment in 1984 Mr Tal worked for various employers as a plant operator and labourer.
In 2010 Mr Tal commenced employment with ACE Demolitions & Excavations Pty Ltd (ACE) as a plant operator. He then found employment interstate for some months before returning to ACE in 2014 where he worked up to late 2014. He then commenced employment with the respondent who was known at that time as Civil Foundations Piling Pty Ltd, working as a plant operator and crane driver on construction sites.
In 2015 Mr Tal made a claim for noise induced hearing loss against his former employer, ACE. Mr Tal was assessed as having suffered 12% whole person impairment (WPI) in respect of that hearing loss deemed to have occurred in October 2014 and was paid lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) accordingly.
Mr Tal noticed increasing hearing loss which he attributed to further exposure to noise in the workplace. In July 2020 Mr Tal was assessed by an ear nose and throat surgeon,
Dr Lucchese at the request of Mr Tal’s solicitors for the purposes of a further claim pursuant to section 66 of the 1987 Act. Dr Lucchese assessed Mr Tal as having 63.7% total binaural hearing impairment which equated to 32% WPI. He deducted 12% WPI in respect of the earlier claim to give a total impairment resulting from employment subsequent to the earlier claim of 20% WPI. Dr Lucchese made no deduction with respect to non-occupational hearing loss.Mr Tal’s solicitors made a claim in accordance with Dr Lucchese’s assessment. Mr Tal was then assessed by a further ear nose and throat surgeon, Dr Henley Harrison, at the request of the insurer. Dr Harrison was of the view that a substantial degree of Mr Tal’s hearing loss was attributable to causes other than exposure to noise. He assessed Mr Tal as suffering 27% binaural hearing impairment equating to 13% WPI as a result of exposure to workplace noise. After deduction of the previous claim, Dr Harrison assessed Mr Tal as having 1% WPI as a result of further exposure to workplace noise.
The dispute as to the extent of impairment was referred to a Medical Assessor who assessed Mr Tal on 24 March 2022. The Medical Assessor assessed Mr Tal as having 30.8 % binaural occupational hearing impairment which, after deduction for presbycusis and the addition of 2% WPI in respect of tinnitus converted to a total of 14% WPI. The Medical Assessor assessed 46.8% binaural hearing impairment as due to non-occupational causes, converted to 23% WPI. Deducting the previous assessment of 12% WPI from the assessment of 14% WPI gave an assessment of 2% WPI in respect of the further impairment due to exposure to workplace noise.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
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 there was sufficient information available to the Panel to decide the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into error in failing “to provide reasons for non-occupational noise quantum” or failed “to record proper reasons for non-occupational noise quantum”. The appellant further submitted that the Medical Assessor had failed to address “the proportion to which the applicant’s industrial deafness related to non-occupational deafness”, that the Medical Assessor had “failed to assess the degree of permanent impairment in accordance with section 65A (2) of the Workers Compensation Act 1987”, had “failed to take into account properly the noise levels in respect of the lower frequencies” and had fallen into error “by failing to distinguish between the effects of industrial deafness and non-occupational deafness”.
In reply, the respondent submits that the Medical Assessor provided adequate, appropriate reasons for his assessment for non-occupational noise and had appropriately addressed the contribution of that cause of hearing loss. The Medical Assessor was not required to provide an explanation for the hearing loss which was unrelated to employment. The Medical Assessor was not required to consider section 65A of the1987 Act as that section related to psychological injury. The Medical Assessor had appropriately considered the loss at the lower frequencies.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284
The Medical Assessor examined Mr Tal on 24 March 2022. The Medical Assessor recorded the history of exposure to noise in the course of employment, the previous assessment of hearing loss in 2015 and Mr Tal’s observations regarding the ineffectiveness of hearing aids. The Medical Assessor tested Mr Tal’s hearing in accordance with the Guidelines and AS/NZS 1269[2]. The results of testing were reported as repeatable and valid. The Medical Assessor diagnosed “bilateral flat sensorineural hearing loss”. The audiogram was attached to the MAC.
[2] Australian/New Zealand Standard “Occupational noise management”
The Medical Assessor stated that he had carried out his assessment based on the audiogram which he carried out on examination, the history given by Mr Tal and his clinical examination. The Medical Assessor set out his calculations:
“Assessment of Total Binaural Hearing Impairment
Binaural hearing impairment (section 9.9) = 77.6%
Less presbyacusis correction (section 9.10) = 4.4%
Add loading for severe tinnitus (section 9.11) = 2.0%
Total binaural hearing impairment = 75.2%
WPI (Whole Person Impairment) Table 9.1 = 38.0%
Assessment of Occupational Hearing Impairment
Binaural occupational hearing impairment (section 9.9) = 30.8%
Less presbyacusis correction (section 9.10) = 4.4%
Add loading for severe tinnitus (section 9.11) = 2.0%
Total binaural occupational hearing impairment = 28.4%
WPI (Whole Person Impairment) Table 9.1 = 14.0%
Assessment of Non-Occupational Hearing Impairment = 46.8%
WPI (Whole Person Impairment) Table 9.1 = 23.0%”
The Medical Assessor explained: “As a previous claim of 12% whole person impairment has been made, Mr Tal has therefore sustained a further whole person impairment of 2.0%”.
The Medical Assessor stated that he taken into account the normality of the tympanic membranes, the history of noise exposure and the shape of the audiogram. The Medical Assessor explained:
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first and only with further noise damage are the lower frequencies effected progressively gradually from the higher frequencies to lower frequencies; that is to say 1500 Hz should be affected less than 2000 Hz and 1000 Hz less than 1500 Hz and so on. The progression of hearing loss in the low frequencies needs to be clinically significant if this damage is from exposure to loud noise. Continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to have a rest period.
After consideration of the cumulative noise emission levels to which Mr Tal has been exposed and the flat shape of the audiogram, I would consider that the frequencies 2000, 3000 and 4000 Hz in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.”
The Medical Assessor considered and reported his observations concerning the respective reports of the appellant’s independent medical expert, Dr Lucchese, and that of the respondent, Dr Harrison. The Medical Assessor observed that the audiogram obtained on examination was similar to that obtained by Dr Harrison. He agreed with Dr Harrison as to the frequencies damaged by exposure to noise in the workplace.
The Medical Assessor commented with respect to the report of Dr Lucchese:
“My audiogram is not the same as the audiogram carried out by Dr Lucchese. I disagree with Dr Lucchese’s assessment that Mr Tal has an additional 20% whole person impairment after such a short period of employment. I agree with Dr Lucchese’s statement that the majority of Mr Tal’s hearing loss is not due to loud noise however his calculations have included all of Mr Tal’s hearing loss in the calculations for noise induced hearing. I agree with Dr Lucchese’s loading of 2% for severe tinnitus.”
The Medical Assessor assessed non-occupational hearing impairment of 46.8%. The certificate forming part of the MAC set out the Medical Assessor’s assessment:
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB HL
Air Bone
Total % BHI
Occupational % BHI
01/11/2015
500
65
70
14.2
-
1000
65
75
18.1
-
1500
65
75
14.5
-
2000
70
80
12.0
12.0
3000
80
85
9.2
9.2
4000
85
95
9.6
9.6
TOTAL % BHI 77.6
Less Pre-Existing non-related loss: 46.8
Less Presbycusis correction: 4.4
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 28.4
Resultant total BHI of 28.4% equals 14.0% whole person impairment (Table 9.1)
The appellant submitted that the Medical Assessor had “failed to provide reasons for nonoccupational noise quantum” and “fails to record proper reasons for nonoccupational noise quantum”. The Panel does not accept that submission.
The Guidelines pursuant to which the Medical Assessor conducted his assessment provide[3]:
“The level of hearing impairment caused by non-work-related conditions is assessed by the medical specialist and considered when determining the level of work-related hearing impairment. While this requires medical judgement on the part of the examining medical specialist, any non-work-related deductions should be recorded in the report.”
[3] Page 43, paragraph 9.4
As noted in the Guidelines, assessment of hearing loss due to non-work-related conditions is to be assessed by clinical judgement. The Medical Assessor has appropriately set out his reason for attributing hearing loss below 2000 Hz as unrelated to work. The Medical Assessor commented on the asymmetrical audiogram and the overall shape of the audiogram, explaining that this led him to the conclusion that the audiogram was not totally consistent with noise induced hearing loss alone. The Medical Assessor Members of the Panel agree with that assessment.
The Medical Assessor explained the progressive nature of noise induced hearing loss as typically affecting the higher frequencies as set out above. The Medical Assessor drew the appropriate conclusion from the shape of the audiogram that the frequencies below 2000 Hz were unlikely to be due to exposure to noise.
That conclusion was consistent with the evidence before the Medical Assessor. In his report dated 23 July 2020 Dr Lucchese said: “ABR threshold establishment with click stimulus was performed today. Repeatable well-defined waves were recorded down to 70 dBHL in both ears suggesting moderately severe hearing loss averagely for 2 to 4 kHz bilaterally”.
Dr Lucchese stated; “In my opinion, the majority of Mr Tal’s hearing loss is not due to noise but to some other undisclosed, undetermined cause”.[4][4] Report 23 July 2020, page 8
Although Dr Lucchese recognised that the greater part of Mr Tal’s hearing loss was not due to noise, he did not make any deduction when assessing impairment. As noted above, the Guidelines, paragraph 9.4, require that the level of hearing impairment caused by non-work-related conditions has to be assessed in order to determine the level of work-related hearing impairment.
Dr Harrison in his report dated 12 March 2021 stated:
“The diagnosis is bilateral sensorineural deafness partly due to occupational deafness and partly due to another cause or causes probably at least partly constitutional. Only a small proportion of the hearing loss can be due to occupational noise exposure because of the flat profile of the audiogram.”
Dr Harrison explained his reasoning, commenting “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 suggestive of industrial deafness”. Dr Harrison apportioned the industrial deafness to the frequencies from 2 kHz and above “because industrial deafness does not usually affect the frequency below these”.
The Panel is satisfied that the Medical Assessor has provided reasons for his assessment of non-employment-related deafness, appropriately recording those reasons both in the MAC and the accompanying table. As noted in the MAC, the Medical Assessor based his assessment on the shape of the audiogram noting the asymmetrical loss and the history of exposure to noise in the workplace. That was an appropriate exercise of clinical judgement.
The appellant further submitted that “the MAC contains a demonstrable error on the basis that the MAC failed to address the proportion to which the applicant’s industrial deafness related to non-occupational deafness”.
The Panel does not accept that submission. The Medical Assessor has recorded the extent of hearing loss attributable to the frequencies below 2000 Hz and explained why he did not regard that part of the loss is due to exposure to noise. The table attached to the MAC clearly shows the hearing loss attributable to the lower frequencies and the Medical Assessor has appropriately assessed the proportion of hearing loss unrelated to noise exposure by adding the losses at 500, 1000 and 1500 Hz to give a total of 46.8% BHI.
The Panel accepts that this was an appropriate basis for the Medical Assessor to assess the proportion of loss which was not attributable to exposure to noise.
The appellant submitted that; “The MAC was based upon his [the Medical Assessor’s] assessment on the incorrect criteria as he failed to assess the degree of permanent impairment in accordance with section 65A (2) of the Workers Compensation Act 1987 Act”.
The Panel does not accept that submission. Section 65A is not relevant to the assessment of noise induced hearing loss. Section 65A of the 1987 Act provides:
“65A SPECIAL PROVISIONS FOR PSYCHOLOGICAL AND PSYCHIATRIC INJURY
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note : If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply--
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note : If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section--
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
The appellant further submitted that “the MAC was based upon a demonstrable error as it failed to take into account properly the noise levels in respect of the lower frequencies” and “the AMS fell into error by failing to distinguish between the effects of industrial deafness and non-occupational deafness”.
The Panel does not accept those submissions. The Medical Assessor has appropriately considered the noise levels in respect of the lower frequencies (those below 2000 Hz) as appears from the audiogram and the table accompanying the MAC. In accordance with paragraph 9.4 of the Guidelines, the Medical Assessor has exercised medical judgement based on the shape of the audiogram and the asymmetry of the left and right ear thresholds to determine that losses at the lower frequencies do not result from exposure to noise. The Panel accepts that the Medical Assessor’s assessment was soundly based on the evidence.
The Table accompanying the MAC demonstrates that the Medical Assessor appropriately distinguished between “the effects of industrial deafness and nonoccupational deafness”. The Medical Assessor explains the rationale for the distinction at paragraph 10.b of the MAC.
No error or adoption of incorrect criteria has been established that these grounds of appeal must also fail.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 April 2022 should be confirmed.
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