Transport of NSW v El-Harris

DETERMINATION OF APPEAL PANEL
CITATION:	Transport of NSW v El-Harris [2024] NSWPICMP 203
APPELLANT:	Transport of NSW
RESPONDENT:	Mustapha El-Harris
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Raj Thandavan
MEDICAL ASSESSOR:	Robert Payten
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Hearing loss due to occupational noise exposure; employer appealed on the basis of a failure to take account of hearing loss in employment outside of New South Wales by making a deduction or apportionment; Appeal Panel found no error; 46-year employment history of noisy employment since 1971; if noise induced hearing loss is considered to have occurred over the whole of this period, the contribution of any pre-existing injury in the period between 1972 and 1974 to the level of permanent impairment assessed as a result of injury deemed to have occurred in 2017 after 40 years of exposure to noise in the employ of the appellant, is negligible and should not be appropriately the subject of a deduction or apportionment in the circumstances of this case; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 December 2023 Transport of NSW (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Henley C Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 December 2023.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (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 Procedural Direction PIC7.
The appellant did not seek that the worker be re-examined by a Medical Assessor who was also a member of the Appeal panel. As a result of the Appeals Panels’ preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no jurisdiction to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) letter to IDA Legal requesting particulars of employment dated
19 December 2023, and
(b) Letter to HWLE responding to request for particulars of employment dated
21 December 2023.
The additional evidence concerns the particulars of the worker’s employment outside the State of New South Wales (NSW) in Queensland between 1972 and 1974.
The respondent worker consented to the Appeal Panel admission of the additional evidence.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a) letter to IDA Legal requesting particulars of employment dated 19 December 2023, and
(b) letter to HWLE responding to request for particulars of employment dated
21 December 2023.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as the additional evidence received on the appeal as set out above and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate 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.

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 [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.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Date of injury:   22 July 2017 (deemed)
·    Body parts/systems referred:         Hearing Loss
·    Method of assessment:                  Whole Person Impairment”
The Medical Assessor issued a MAC as follows:

Injury deemed to have happened on:	Frequency Hz	Left dB HL % Air Bone		Right dB HL % Air Bone		Total % BHI	Occupational % BHI
22 July 2017 (deemed)	500	35 40	4.5	30 40	2.8	3.4	0
1000	35 35	5.7	35 35	5.7	5.7	0
2000	40 40	6.4	40 40	6.4	6.4	6.4
3000	45 55	6.1	50 55	7.3	6.3	6.3
4000	55 65	5.6	65 65	7.0	5.7	5.7
5000	65 70	6.7	65 70	6.7	6.7	6.7
35.0	25.1
TOTAL % BHI: 34.2
Less Pre-existing non-related loss: 9.1
Less Presbyacusis correction: 5.5
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 21.6
Resultant total BHI of 21.6% = 11% whole person impairment (Table 9.1)

The employer appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable errors which included the following:
(a)    in failing to apply a deduction or an apportionment which excludes any permanent impairment arising from industrial deafness caused by noisy employment prior to the deemed date of injury where the worker was engaged in that employment outside the state of NSW;
(b)    further, or in the alternative, if the Appeal Panel considers that the correct method of excluding hearing loss arising from employment outside NSW is by applying a deduction under s 323, then the assessment by the Medical Assessor was also made on the basis of incorrect criteria because the Medical Assessor has not applied the relevant criteria to making a deduction, and
(c)    the Medical Assessor has erred in recording his assessment of occupational BHI particularly at the lower frequencies of 2000Hz and 30000Hz. Where there has been an error in assessing BHI at each frequency, then the appellant also submits the calculation of the total occupational BHI of 25.1%, and in turn, the conversion of this rating to a rating of WPI, are also erroneous.
In summary, the respondent worker Mustapha El-Harris (the respondent) submitted that although there is an error in the table, this appears to be typographical only and can be corrected on appeal. As to the substance of the Medical Assessor findings, the respondent submitted there is no error and no assessment on the basis of incorrect criteria and the final assessment of 11% WPI should be confirmed.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: During his time with the respondent he was exposed to loud noise with the potential to damage hearing. He has had hearing difficulty for 20 or more years. He has had no treatment.
·    Present treatment: Nil with regard to the claim.
·    Present symptoms: He has difficulty hearing and understanding people including family, friends and other persons and has to ask them to repeat themselves. The ears appear about equally affected. He needs the television turned up at home about which his family complains. The hearing is worse in group conversations and background noise. He also has loud tinnitus (noises in the ears) which sometimes scares him and which interferes with his sleep. From the description given I consider it to be severe.
·    Details of any previous or subsequent accidents, injuries or condition: Other than previous occupational noise exposure in NSW, there are no previous or subsequent accidents injuries or conditions.
·    General health: He has an irregular heartbeat (probably atrial fibrillation) and takes medication for this. However these factors would be most unlikely to significantly affect hearing so there is nothing relevant to the claim. In particular there is no history of previous ear disease, no history of familial deafness, none suggestive of exposure to ototoxic (hearing-damaging) medication and none of signiﬁcant head injury.
·    Work history including previous work history if relevant: I went through his statement with him and largely confirmed it. He worked for the NSW railways (under different names) for 40 years from 1977 until 2017 as a train guard. He was exposed to loud noise as indicated in the statement with noise from track work but in particular from train noise including from 'red rattlers' especially when going through tunnels and also in particular from a compressor situated on top of the guard cabin which made significant continuous noise. This noise was such that in its presence he would have to raise his voice for someone with normal hearing to understand him at a distance of 1 metre which indicates that the noise had the potential to damage hearing over an 8-hour working day. He worked 10 hours a day, 5 or often 6 days a week. He could not wear hearing protection.
Prior to that as indicated in the statement, he had various employers as a labourer on construction sites and was exposed to loud noise as described from 1971 until 1975. He generally worked 8 hours a day, 5 days a week exposed to loud noise with the potential to damage hearing. He did not wear hearing protection. Some of this work was in Queensland but he said that he was sent there by employers from NSW so I do not believe that a deduction for this time is required.
Before that he was a student in his native Lebanon.
He has not worked since leaving the respondent.
·    Social activities/ADL: Apart from the effects of the hearing loss as described under ‘present symptoms’ on activities of daily living, the worker avoids noisy or crowded places because of increased difficulty understanding speech in such circumstances.
The worker has done no military service and has no noisy pastimes.”
There is a dispute about the employment outside of NSW between 1972 and 1974 to which the additional evidence received by the Appeal Panel by consent is relevant. The appellant says it was not connected to the State of New South Wales and the Medical Assessor has erred by failing to make it the subject of a deduction or apportionment.
The Medical Assessor recorded his findings on physical examination as follows:
“Due to the current Covid-19 pandemic the examination was restricted to the essentials – examination of the ears and assessment of the ability to understand me.
On examination, the ears were normal.
I was able to converse satisfactorily with the worker with a slightly raised speaking voice at a distance of about two metres.”
An audiogram was conducted on the day of examination and the Medical Assessor noted as follows:
“Audiometry was performed on the day of assessment in a quiet environment in a suitable sound proofed booth using a calibrated audiometer. The audiogram was performed by my audiologist, Mrs Monica Summers a qualified audiologist whose qualifications are BA DipEd, DipAud, MAud, MAudSA (CCP) Clinical Audiologist. Prior to the audiogram being performed, I ascertained that the worker had not been exposed to loud noise in the last 16 hours. The audiogram showed a bilateral, almost equal sensorineural deafness affecting all frequencies. The total binaural hearing impairment (BHI) derived from this audiogram is 34.2%. A copy of the audiogram accompanies this report. However not all of this deafness is occupational deafness (‘industrial deafness’).”
The Medical Assessor summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses:
Bilateral sensori-neural deafness partly due to occupational deafness and partly due to another unknown cause or causes probably at least partly constitutional.”
The Medical Assessor noted in regard to consistency of presentation as follows:
“consistency of presentation
The history and examination are consistent with a diagnosis of industrial deafness but the audiogram is not consistent with all of the deafness being industrial deafness (an accurate audiogram was easily obtained).”
The Medical Assessor explained his impairment assessment as follows:
“1. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
The date of injury is after 1 January 2002 so the 1988 NAL Tables and the WorkCover Guides Fourth Edition – reissued 1 March 2021 have been used to calculate percentages of hearing loss and binaural hearing impairment (BHI) and to derive Whole Person Impairment (WPI).
The worker’s employment with the Respondent has been determined to have the tendencies, incidents and characteristics such as to pose a real risk of damaging hearing. I am in agreement with this.
The history is of significant occupational noise exposure.
Please also see below.
1.   REASONS FOR ASSESSMENT
a.   My opinion and assessment of whole person impairment
Please see 9, above.
There is
In making that assessment I have taken account of the following matters:-
As stated above the history and examination are consistent with a diagnosis of occupational noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because in noise induced occupational hearing loss the lower frequencies are usually preserved and the hearing loss in the effected frequencies increases in severity with increase in frequency until at least 3000 cps. In this case the hearing loss at 1000 cps is much the same as at 1500 cps so the profile of the audiogram below 1500 cps is not consistent with that diagnosis. I have therefore apportioned the occupational hearing loss to the frequencies 1500 cps and above in which the profile of the audiogram is consistent with being due to occupational noise exposure. This apportionment gives 21.5% BHI before mandatory deduction for presbycusis and 19.6% after such mandatory deduction. The worker's tinnitus is severe and I have made an allowance of 2.0% that. The foregoing give a resultant total BHI of 21.6% which equals 11% WPI.
b.   An explanation of my calculations (if applicable)
Calculations involved are included in the accompanying sheet.
Mandatory presbyacusis has been deducted as prescribed in the 1988 NAL Tables.
Worksheet /actual calculations attached? Yes.”
The Medical Assessor made brief comment on the other medical opinions before him as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.
As indicated in the referral, the report by Professor Fagan has errors with regard to the work history in it; obviously my history differs from his and accordance with the statement. He has accepted all frequencies as being due to occupational noise exposure; I have given my reasons for my differing opinion in this respect.
I have no significant difference of opinion with the report of Dr Howison.”
The Medical Assessor made a deduction for hearing loss which he considered to be unrelated to noise induced hearing loss and he did not make a deduction relevant to exposure to noise in employment outside of NSW as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a.   In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
Non-related hearing loss
b.   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:
9.1% BHI of non-related hearing
c.   In my opinion the deductible proportion is 9.1% BHI for the following reasons:
Because that is the extent of the non-related loss.”
The worker told the Medical Assessor that his employment in Queensland related to his employment in NSW because that was the intention of his employer and himself at the time.
The appellant submits that this cannot be so and is inconsistent with the additional evidence which shows employment at various sites in Queensland between 1972 and 1974 (a period of some 20 months).
The worker does not concede that the employment was noisy or that he suffered any hearing loss during this period.
The additional evidence would on its face show that the worker worked in Queensland for a period of some 20 months between June 1972 and February 1974. The worker may have been exposed to occupational noise exposure during his period.
The respondent worker notes that the worker has a history of noisy employment subsequently with the appellant for 40 years from 1977 to 2017.
The appellant submitted that this should have sounded in a deduction or apportionment to take account of the noise exposure outside the State of NSW between 1972 and 1974.
A deduction can only be made under s 323 if the pre-existing condition, injury or abnormality has contributed to the overall permanent impairment assessed. This is not to be based on assumption and it cannot simply be assumed that because a worker may have been exposed to noise in a period of employment outside the State of New South Wales then a deduction for a pre-existing injury under s 323 must be made. Each case will depend on its own particular circumstances: See Pereira v Siemans Limited [2015] NSWSC 1133 (Pereira).

In Pereira Garling J on judicial review said, in relation to exposure to noise in that case of 17 years of prior military service in Pakistan, as follows:
“The difficulty with such a conclusion is that there was simply no factual material which was sufficient to enable such a conclusion to be drawn. Whilst there was factual material available which described some of the work which took place in Pakistan, nowhere was there any evidence which would enable a conclusion to be drawn that the level of noise to which the plaintiff was exposed in Pakistan, was of a nature which would have, by a gradual process, resulted in a loss of hearing. Nowhere was there any material which allowed the Appeal Panel or the AMS, to conclude that the plaintiff had been exposed to an unacceptable noise level for a sufficient length of time, and of the kind of noise level which, on the probabilities, would have resulted in an injury.”
In respect of the making of a “rule of thumb” one-tenth deduction, Garling J observed in that case:
“The application of this rule of thumb deduction does not constitute fulfillment, in a hearing loss case, of this required element. As a matter of logic, the present extent of the plaintiff’s hearing loss may have been caused entirely by the plaintiff’s employment in NSW over the 32 year period. There is nothing about his present degree of whole person impairment which would, of itself and without more, enable a contrary conclusion. There was no material for example, which enabled a finding that the level of impairment from loss of hearing for the plaintiff, could not all have arisen during the 32 year period of employment in NSW.
However, the Appeal Panel and the AMS have simply assumed that by application of the straight line method of attribution of deafness, there must have been a pre-existing injury, and the degree of impairment from which the plaintiff suffers must have been contributed to by all of the pre-existing noise exposure.
This is nothing more than assumption or speculation. The conclusion is not sufficient to satisfy the obligation under s 323 of the 1998 Act to be satisfied that a pre-existing injury has contributed to the present impairment.”
Each case will turn on its own facts as to whether a deduction under s 323 is appropriate.
The Appeal Panel considers that in this case, even if the employment outside of NSW was noisy, its contribution, if any, to the overall level of permanent impairment assessed would be impossible to ascertain. There is no available evidence by which this could be determined. In circumstances of an overall employment history of some 46 years (since 1971) in noisy employment, a period of some 20 months outside of NSW between 1972 and 1974 would be of such negligible effect that to make any deduction would be inappropriate. To make a one-tenth deduction in these circumstances would be inconsistent and at odds with the available evidence which is 40 years of noisy employment with the appellant (from 1977 to 2017) and overall some 46 years of noisy employment since 1971. If noise induced hearing loss is considered to have occurred over the whole of this period, the contribution of any pre-existing injury in the period between 1972 and 1974 to the level of permanent impairment assessed as a result of injury deemed to have occurred in 2017 after 40 years of exposure to noise in the employ of the appellant, is negligible and should not be appropriately the subject of a deduction or apportionment in the circumstances of this case.
In this case, there is no available evidence that would support such a deduction being made in the circumstances of this case. There is no basis on which an apportionment should be made for injury as a result of employment outside of New South Wales as a result of any noise exposure in employment between 1972 and 1974.
The appellant also submitted on appeal as follows:
“The medical assessor has erred in recording his assessment of occupational BHI particularly at the lower frequencies of 2000Hz and 30000Hz. Where there has been an error in assessing BHI at each frequency, then the appellant also submits the calculation of the total occupational BHI of 25.1%, and in turn, the conversion of this rating to a rating of WPI , are also erroneous.”
The appellant went on to observe that the Medical Assessor assessed occupational BHI by assessing 6.4 at 2000Hz, 6.3 at 3000Hz, 5.7 at 4000Hz, and 6.7 at 5000Hz.
The appellant submitted that as these BHI ratings “appear to decrease from the frequencies at 200HZ to the higher frequency at 3000hz whilst at 5000Hz the BHI assessed is at it’s greatest. Industrial deafness affects hearing at the higher frequencies first and therefore occupational BHI ratings should be greater at the higher frequencies than at the lower frequencies. That is occupational BHI ratings should generally decrease from the higher frequencies to the lower frequencies”.
The appellant went onto submit:
“As such, the appellant submits that the MA has erred in his assessment of occupational BHI, particularly at the lower frequencies of 2000Hz and 30000 HZ. Where industrial deafness affects hearing at the higher frequencies first, the lower frequencies should demonstrate a lesser loss of hearing resulting from industrial deafness.
Specifically, the appellant submits that the occupational BHI rating of 6.4% at 2000Hz and 6.3% at 3000HZ are incorrect as the MA should have attributed a greater proportion of the workers total hearing impairment at each frequency to non-occupational factors.”
The submission is misconceived. It is not the occupational BHI figures that you look at to determine whether the losses are consistent with noise induced occupational hearing loss, rather you look at the decibel levels as per the audiogram. It is the progression of the decibel levels and the decibel levels at the higher frequencies that are the relevant consideration.
As the Medical Assessor correctly stated:
“…in noise induced occupational hearing loss the lower frequencies are usually preserved and the hearing loss in the effected frequencies increases in severity with increase in frequency until at least 3000 cps. In this case the hearing loss at 1000 cps is much the same as at 1500 cps so the profile of the audiogram below 1500 cps is not consistent with that diagnosis. I have therefore apportioned the occupational hearing loss to the frequencies 1500 cps and above in which the profile of the audiogram is consistent with being due to occupational noise exposure.”
As per the audiogram conducted on the day of examination, the decibel levels are worse at the higher frequencies and this is evident bilaterally as follows, excluding losses below 1500Hz as the Medical Assessor appropriately did:

Frequency Hz	Left dB *Air Bone*		Right dB Air Bone
1500	40 40	40 40
2000	45 55	50 55
3000	55 65	65 65
4000	65 70	65 70

As can be seen in the table above (consistent with the audiogram conducted on the day of examination), the decibel levels are getting progressively worse from 1500 to 4000 Hz, consistent with industrial deafness.
The respondent worker conceded an error that although the body of the MAC refers to 5000Hz but omits 1500 Hz. This is inconsistent with the reasoning of the Medical Assessor in the body of the MAC.
The table omits the 1500 Hz frequency and instead includes the 5000Hz frequency as follows:

Injury deemed to have happened on:	Frequency Hz	Left dB HL % Air Bone		Right dB HL % Air Bone		Total % BHI	Occupational % BHI
22 July 2017 (deemed)	500	35 40	4.5	30 40	2.8	3.4	0
1000	35 35	5.7	35 35	5.7	5.7	0
2000	40 40	6.4	40 40	6.4	6.4	6.4
3000	45 55	6.1	50 55	7.3	6.3	6.3
4000	55 65	5.6	65 65	7.0	5.7	5.7
5000	65 70	6.7	65 70	6.7	6.7	6.7
35.0	25.1
TOTAL % BHI: 34.2
Less Pre-existing non-related loss: 9.1
Less Presbyacusis correction: 5.5
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 21.6
Resultant total BHI of 21.6% = 11% whole person impairment (Table 9.1)

The appeal Panel considers this to be an obvious error and will correct the table in accordance with the audiogram conducted on the day of examination as follows:

Injury deemed to have happened on:	Frequency Hz	Left dB HL % Air Bone		Right dB HL % Air Bone		Total % BHI	Occupational % BHI
22 July 2017 (deemed)	500	35 40	4.5	30 40	2.8	3.4	0
1000	35 35	5.7	35 35	5.7	5.7	0
1500	40 40	6.4	40 40	6.4	6.4	6.4
2000	45 55	6.1	50 55	7.3	6.3	6.3
3000	55 65	5.6	65 65	7.0	5.7	5.7
4000	65 70	6.7	65 70	6.7	6.7	6.7
34.2	25.1
TOTAL % BHI: 34.2
Less Pre-existing non-related loss: 9.1
Less Presbyacusis correction: 5.5
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 21.6
Resultant total BHI of 21.6% = 11% whole person impairment (Table 9.1)

The Appeal Panel has checked the audiogram air conduction figures for right and left and can confirm that the columns of figures for air conduction dB hearing loss right and left on the table are the same as on the audiogram. The Panel has checked the total BHI% from the NAL tables 1988 and confirm that 34.2% is correct. The occupational BHI% is also correct at 25.1% and the adjusted BHI is also correct at 21.6% which equates to 11% WPI.
This means the MAC will need to be revoked so that the certificate reflects the findings in the body of the MAC. But otherwise, the Appeal Panel notes that it has confirmed the assessment of the Medical Assessor. The respondent had submitted that if the Appeal was successful the Appeal Panel should consider including the losses below 1500 Hz. However, the Appeal Panel has in fact confirmed the assessment of the medical assessor although a correction to an obvious error in the certificate has been necessary.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 December 2023 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

Matter number:	W6966/23
Applicant:	Transport of NSW
Respondent:	Mustapha El-Harris

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 Medical Assessor Henley C Harrison and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Injury deemed to have happened on:	Frequency Hz	Left dB HL % Air Bone		Right dB HL % Air Bone		Total % BHI	Occupational % BHI
22 July 2017 (deemed)	500	35 40	4.5	30 40	2.8	3.4	0
1000	35 35	5.7	35 35	5.7	5.7	0
1500	40 40	6.4	40 40	6.4	6.4	6.4
2000	45 55	6.1	50 55	7.3	6.3	6.3
3000	55 65	5.6	65 65	7.0	5.7	5.7
4000	65 70	6.7	65 70	6.7	6.7	6.7
34.2	25.1
TOTAL % BHI: 34.2
Less Pre-existing non-related loss: 9.1
Less Presbyacusis correction: 5.5
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 21.6
Resultant total BHI of 21.6% = 11% whole person impairment (Table 9.1)

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

[2024] NSWPICMP 203

9 April 2024