Trojan Transport Services Pty Ltd v Hope
[2022] NSWPICMP 228
•20 May 2022 (amended 23 May 2022)
| AMENDED DETERMINATION OF APPEAL PANEL | |
| CITATION: | Trojan Transport Services Pty Ltd v Hope [2022] NSWPICMP 228 |
| APPELLANT: | Trojan Transport Services Pty Ltd |
| RESPONDENT: | Terence Hope |
| APPEAL PANEL: | Member Jane Peacock Dr Henley Harrison Dr Robert Payten |
| DATE OF DECISION: | 20 May 2022 (amended 23 May 2022) |
| CATCHWORDS: | WORKERS COMPENSATION- Industrial deafness; appellant employer alleged error in the Medical Assessor (MA) including the losses at the lower frequencies in the assessment of the extent of the impairment due to occupational noise exposure; the MA clearly explained why he excluded the losses in the right ear at 1500Hz and 2000Hhz where they were in excess of the left; apart from this exclusion, the MA’s assessment otherwise included all frequencies from 0.5 to 4Hz; on the audiogram performed by the MA on the day of assessment, the losses at these frequencies follow the typical pattern of occupational noise induced hearing loss due to the nature and duration, being some 50 years, of the worker’s occupational noise exposure; that is, considering the nature and duration of the worker’s occupational noise exposure and the nature and extent of all the hearing losses in the left ear at 0.5 – 4 kHz, it was open to the MA to find that all of the losses including at the low frequencies are compatible with noise induced hearing loss; Held- Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 December 2021 Trojan Transport Services Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian Williams, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 November 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, 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
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 she 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.
Medical Assessment Certificate
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
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 MA as follows:
“Date of injury: 30 July 2020 (deemed)
Body parts/systems referred: Hearing loss
Method of assessment: Whole Person Impairment”
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
30.7.2020
500
15
15
20
20
0.4
0.4
1000
25
25
30
30
2.5
2.5
1500
40
40
55
60
7.3
6.4
2000
45
45
65
65
6.7
6.1
3000
50
50
55
60
4.9
4.9
4000
55
55
50
50
4.5
4.5
6000
50
50
8000
50
50
TOTAL % BHI: 26.3%
Less Pre-existing non-related loss: 1.5%
Less Presbyacusis correction: 3.3%
Add % of severe tinnitus: 0.0%
Adjusted total % BHI: 21.5%
Resultant total BHI of 21.5% = 11% whole person impairment (Table 9.1)
The employer appealed.
In summary, the appellant’s submissions on appeal were that the MA made the following demonstrable errors:
by failing to provide reasoning for including the frequencies below 2000Hz.
The history recorded by the MA and the material available to him did not support inclusion of the frequencies below 2000Hz in the overall calculation of binaural hearing loss.
In summary, the respondent worker submitted that the MA did not make a demonstrable error and the MAC should be confirmed.
The MA recorded a history as follows:
“
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
The history I obtained from Mr Hope is as follows.
Hearing Loss
He gave a 2 year history of bilateral gradually progressive hearing loss. He said the right is equal to the left. He said he has difficulty hearing conversation, needs to increase the volume of the television above others, needs to increase the volume of the telephone and has difficulty hearing in background noise. he said he obtained hearing aids 1 year ago and said they help his hearing.
Tinnitus
He gave no history of tinnitus.
Vertigo / dizziness
He gave no history of vertigo.
· present treatment: Please see above
· present symptoms: Please see above
· details of any previous or subsequent accidents, injuries or condition:
PAST HISTORY
He gave no history of hereditary deafness. He gave no history of direct ear or head trauma or blast injury. He gave no history of otitis media or ototoxic exposure. He gave no history of Military Service or recreational noise exposure. He gave no history of otalgia (ear pain) or otorrhoea (ear discharge). He gave no history of ear surgery.
He gave no history of heart disease, stroke, diabetes, thyroid disease, meningitis, allergic rhinitis or asthma. He gave a history of raised cholesterol treated with tablets. He gave a history of hypertension treated with tablets. He gave a history of a motor vehicle accident at age 20 years with no effect on his hearing. He said his face hit the windscreen. He said he had loss of consciousness for a short period and a fractured nose. He said he was hospitalised for 1 week.
· work history including previous work history if relevant:
OCCUPATIONAL HISTORY
· Trojan Transport Services Pty Ltd March 2013 - 2020 as a Warehouse Supervisor. He said he was exposed to the noise of large and small forklifts, loading and unloading of containers and trucks, semitrailers and metal on metal noise. He said he had to raise his voice to have a conversation at 1 metre. He said no hearing protection was worn.
· Transport Warehousing 1970-2014, all in NSW, as Warehouse Supervisor. He said he was exposed to similar noise to that at Trojan Transport including large and small forklifts, loading and unloading containers and trucks, metal on metal noise and semitrailers. He said he had to raise his voice to have a conversation at 1 metre. He said no hearing protection was worn.
Botany Consulting Pty Ltd for 1 year, immediately before Trojan Transport Services, as Warehouse Supervisor.”
The MA conducted a physical examination and recorded as follows:
“On examination I observed the following.
Ears
Otomicroscopy
Right Ear:
His right external auditory canal is normal.
His right tympanic membrane is intact.
Left Ear:
His left external auditory canal is normal.
His left tympanic membrane is intact.
Weber Test: Using the 512Hz tuning fork his Weber test was central.
Rinne Test: Using the 512Hz tuning fork his Rinne test is positive bilaterally.
Nose
Anterior rhinoscopy is normal.
Throat
His oropharynx is normal.
He had no cervical lymphadenopathy.”
An audiological examination was undertaken and the MA recorded as follows:
“AUDIOGRAM
My pure tone audiometry was performed on 2.11.21 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. His responses were repeatable and I considered accurate auditory thresholds were obtained. His pure tone audiogram showed a left sensorineural hearing loss maximal in the high frequencies and a right symmetric sensorineural hearing loss with the left ear apart from right asymmetry at 1.5 and 2kHz.
Impedance audiometry showed a Type A graph bilaterally.
In accordance with the Medical Board guidelines for medico-legal assessments I have given Mr Hope a letter to take to his General Practitioner re his right asymmetric sensorineural hearing loss. He assured me he would do so.”
The MA summarised the injury and his diagnosis and consistency of presentation as follows:
“(a) summary of injuries and diagnoses:
He has suffered from occupational noise exposure causing partial and bilateral occupational noise induced hearing loss, and he has hearing loss of uncertain aetiology.
(b) consistency of presentation
The worker presents as a person who has been exposed to occupational noise as described above. His presentation is consistent with my clinical examination.
The consistency of his presentation with the other medical reports and other material sighted has been discussed below in Reasons.”
The MA explained his assessment as follows:
“The facts on which I have based my assessment of whole person impairment are:
My medical history, my physical examination, my pure tone audiometry, NSW workers compensation guidelines for the evaluation of permanent impairment, reissued 1.3.21, and the 1988 NAL Tables for determining the percentage loss of hearing as prescribed in the Guides and AMA5 where applicable.
…
In making that assessment I have taken account of the following matters:-
Mr Hope has a history of bilateral hearing loss unaccompanied by tinnitus. He gave a history of occupational noise exposure as described above. The above medical history demonstrates no other competing medical cause for his hearing loss. Physical examination and pure tone audiometry indicate a left sensorineural hearing loss maximal in the high frequencies and a right symmetric sensorineural hearing loss apart from right asymmetry at 1.5 and 2kHz. The responses I obtained upon pure tone audiometry are repeatable on ascending and descending threshold measurement and I considered them to represent accurate auditory thresholds. The configuration of his sensorineural hearing loss is not one wholly caused by his occupational noise exposure as described above.
Therefore considering his medical history and physical examination including pure tone audiometry, =
The right asymmetric losses at 1.5 and 2kHz are unrelated to his occupation because occupational noise induced hearing loss is typically symmetric with no asymmetry at 1.5 and 2kHz.
In my opinion he has no tinnitus. I have assessed his tinnitus as 0%.
My audiogram in tabular form
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB HL
Air Bone
Total % BHI
Occupational % BHI
30.7.2020
500
15
15
20
20
0.4
0.4
1000
25
25
30
30
2.5
2.5
1500
40
40
55
60
7.3
6.4
2000
45
45
65
65
6.7
6.1
3000
50
50
55
60
4.9
4.9
4000
55
55
50
50
4.5
4.5
6000
50
50
8000
50
50
TOTAL % BHI: 26.3%
Less Pre-existing non-related loss: 1.5%
Less Presbyacusis correction: 3.3%
Add % of severe tinnitus: 0.0%
Adjusted total % BHI: 21.5%
Resultant total BHI of 21.5% = 11% whole person impairment (Table 9.1)
The MA had regard to the other evidence before him and made brief comments as follows:
“Personal Injury Commission – Certificate of Determination 15.6.21
Comment
I have read and considered this certificate.
Statement by Mr T Hope 19.8.20
Comment
I have read and considered this statement.
Mr Hope states he has rheumatoid arthritis, and has had no noisy hobbies, no ear infections and no familial deafness. There is no mention of tinnitus.
Report by Dr P Fagan 10.5.20
Comment
I have read and considered this report. I prefer my history, examination, audiogram and assessment.
Dr Fagan found 11%WPI due to industrial deafness. Dr Fagan made no addition for tinnitus and Mr Hope gave no history of tinnitus. Dr Fagan states he ‘always worked in NSW’. Dr Fagan assessed 0.5-4kHz hearing loss due to work.
Report by Dr P Fagan 24.2.21
Comment
I have read and considered this report. I prefer my history, examination, audiogram and assessment.
Report by Procare 31.8.20
Comment
I have read and considered this report.
Statement by G Pendergast of 21.8.20.
Comment
I have read and considered this statement.
Statement by M Robinson of 21.8.20
Comment
I have read and considered this statement.
Report by Dr K Howison 25.9.20
Comment:
I have read and considered this report. I prefer my history, examination, audiogram and assessment.
Dr Howison found 0%WPI due to industrial deafness as he did not consider that Mr Hope was working in noise sufficient to be responsible for the causation …. Yet at Ques. 4 Dr Howison replies ‘The only means of treating Mr Hope’s bilateral sensorineural noise induced hearing loss is with the use of bilateral digital hearing aids’. Dr Howison made no addition for tinnitus. Dr Howison states ‘My audiogram is similar to the audiogram by Dr Fagan’.”
The Appeal Panel can discern no error in the assessment of the MA. His job was to assess the impairment as a result of occupational noise exposure as at the deemed date of injury referred to him being 30 July 2020. In so doing he was required to consider the nature and extent of the hearing loss including considering the nature and duration of occupational noise exposure. The Appeal Panel notes that there was occupational noise exposure spanning some 50 years. The MA has clearly explained why he excluded the losses in the right ear at 1500Hz and 2000Hhz where they are in excess of the left. Apart from this exclusion, the MA’s assessment otherwise includes all frequencies from 0.5 to 4Hz. This is because the losses at these frequencies follow the typical pattern of occupational noise induced hearing loss due to the nature and duration being some 50 years, of the workers occupational noise exposure. That is, considering the nature and duration of his occupational noise exposure and the nature and extent of all the hearing losses in the left ear at 0.5 – 4 kHz, it was open to the MA to find that all of the losses including at the low frequencies are compatible with noise induced hearing loss. This is because industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000 Hz as has occurred here. That is, in cases of industrial deafness the hearing loss at 2000 Hz and below would be expected to be less severe than the losses at 3000 Hz and 4000 Hz, and this is the case in the MA’s audiogram after some 50 years of occupational noise exposure. The audiogram obtained by the MA is entirely consistent with the nature and extent of the respondent worker’s occupational noise exposure. For these reasons, the Appeal Panel can discern no error in the assessment by the MA and the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 November 2021 should be confirmed.
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