UGL Operations and Maintenance (Services) Pty Ltd v Claes
[2024] NSWPICMP 850
•10 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | UGL Operations and Maintenance (Services) Pty Ltd v Claes [2024] NSWPICMP 850 |
| APPELLANT: | UGL Operations and Maintenance (Services) Pty Limited |
| RESPONDENT: | Jeffrie Willem Claes |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Robert Payten |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 10 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of binaural hearing loss of 11% whole person impairment by Medical Assessor (MA); respondent employer appealed on the basis that the Medical Assessment Certificate (MAC) contained a demonstrable error in the calculation of total binaural hearing impairment; Panel agreed that the MA made an error in his calculations; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 October 2024 UGL Operations and Maintenance (Services) Pty Limited (the appellant) 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 26 September 2024.
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 ground(s) of appeal on which the appeal is made.
Rule 128 of 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 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent), Jeffrie Willem Claes (Mr Claes), sustained an injury in the course of his employment with the appellant as a trade assistant to a boilermaker.
Mr Claes filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 24 July 2024 claiming 31% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of loss of hearing deemed to have occurred on 1 November 2023.
The Medical Assessor examined the appellant on 16 September 2024. The Medical Assessor assessed total BHI as 56.5%, deducted 31.7% for non-related loss and a further 3.3% for Presbyacusis correction and then added 1% for severe tinnitus which gave an adjusted BHI of 22.5%. The resultant total BHI of 22.5 % was converted to 11% WPI (Table 9.1 of the Guidelines). The Medical Assessor deducted one tenth under s 323 of the 1998 Act for exposure to very loud noise in employment outside New South Wales. The Medical Assessor calculated the total BHI as 20.2% and converted to 11% as a result of the injury deemed to have occurred on 1 November 2023.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Claes to undergo a further medical examination because there was sufficient information upon which to make a determination.
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 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.
The appellant’s submissions included the following:
(a) The MAC contains a demonstrable error pursuant to s 327(3)(d) of the 1998 Act and raises the following grounds of appeal: a. The Medical Assessor made a mathematical error in calculating the total binaural hearing impairment (BHI) b. The Medical Assessor incorrectly applied Table 9.1 of the Guidelines for the Evaluation of Permanent Impairment (the Guidelines) and made an error in converting the total occupation BHI to WPI.
(b) Ground 1: Demonstrable error - Mathematical Error - Based on his assessment and audiogram findings, the Medical Assessor came to the following conclusions:
(i)Mr Claes suffered occupational hearing loss at 2000Hz, 3000Hz and 4000Hz;
(ii)a 10% deduction under s 323 for noise exposure outside of New South Wales was appropriate, and
(iii)a loading of 1% for severe tinnitus was accepted.
(c) The appellant agrees with these conclusions and says they were open to be made by the Medical Assessor. The appellant says that the demonstrable error is limited to a mathematical miscalculation.
(d) The appellant submits that the Medical Assessor has made a mathematical error in calculating the total % BHI. The appellant submits that the correct calculation is as follows:
(i)Binaural occupational hearing impairment: 6.1 + 8.4 + 9.8 = 24.3%;
(ii)Less presbyacusis correction: 24.3% – 3.3% = 21%;
(iii)Tinnitus loading: 21% + 1% = 22%, and
(iv)Total Binaural occupational hearing impairment: = 22%.
(e) Allowing a 10% deduction pursuant to s 323 results in a final total BHI of 19.8% BHI. Using table 9.1 of the Guidelines this converts to WPI of 10%.
(f) Ground 2: Demonstrable error - Incorrect WPI conversion. In the event that the Medical Appeal Panel does not agree with the appellant’s submissions regarding the mathematical error in calculating the BHI, the appellant submits that the Medical Assessor incorrectly applied table 9.1 of the Guidelines to convert the BHI assessment to WPI.
(g) The Medical Assessor on his (flawed) calculations arrived at a final BHI of 20.2%. Table 9.1 of the Guidelines provides that BHI between 18.4% - 20.4% converts to 10% WPI. Accordingly on the Medical Assessor’s calculation of % BHI currently contained in the MAC Mr Claes will only be assessed with 10% WPI.
(h) The MAC should be revoked and the Appeal Panel should issue a new MAC in accordance with a 10% WPI assessment.
Mr Claes submissions included the following:
(a) There are two Grounds of Appeal: a mathematical error and incorrect WPI conversion.
(b) These issues should be referred to the Medical Assessor for reconsideration rather than a Medical Appeal Panel. This option is an alternative to an appeal against an assessment pursuant to s 329 of the 1998 Act.
(c) The Medical Assessor has not provided a copy of his audiogram, and his mathematical calculations are on pages 5 and 7.
(d) The calculations on page 5 of the MAC support the assessment of 11% WPI. This is because 10% of 22.5 equals 2.25. 22.5 minus 2.25 = 20.25, which rounded up equates to 20.5% BHL, i.e. to 11% WPI.
(e) Mr Claes acknowledges that the mathematical calculations on page 7 are different from those on page 5 and would result in an assessment under the threshold.
(f) The Medical Assessor should reconsider his mathematical calculations and provide an amended MAC accordingly.
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.
Ground 1 – mathematical error
The appellant submits the Medical Assessor made a mathematical error in calculating the total binaural hearing impairment (BHI). The appellant argues that the correct calculation is as follows:
(a) Binaural occupational hearing impairment: 6.1 + 8.4 + 9.8 = 24.3%
(b) Less presbyacusis correction: 24.3% – 3.3% = 21%
(c) Tinnitus loading: 21% + 1% = 22%
(d) Total Binaural occupational hearing impairment: = 22%
Allowing a 10% deduction pursuant to s323 results in a final total BHI of 19.8% BHI. Using table 9.1 of the Guidelines this converts to WPI of 10%.
On page 5 of the MAC, the Medical Assessor wrote:
“Assessment of Total Binaural Hearing Impairment
Binaural hearing impairment (section 9.9) = 56.5%
Less presbyacusis correction (section 9.10) = 3.3%
Add loading for severe tinnitus (section 9.11) = 1.0%
Total binaural hearing impairment = 54.2%
WPI (Whole Person Impairment) Table 9.1 = 27.0%
Assessment of Occupational Hearing Impairment
Binaural occupational hearing impairment (section 9.9) = 24.8%
Less presbyacusis correction (section 9.10) = 3.3%
Add loading for severe tinnitus (section 9.11) = 1.0%
Total binaural occupational hearing impairment = 22.5%
WPI (Whole Person Impairment) Table 9.1 = 11.0%
Assessment of Non-Occupational Hearing Impairment = 31.7%
WPI (Whole Person Impairment) Table 9.1 = 16.0%
As a deduction of 10% is indicated under Section 323, Mr Claes therefore has a
binaural high tone sensori-neural noise induced hearing loss of 20.2%, which
represents a whole person impairment of 11%.”
The Medical Assessor on page 5 of the MAC assessed 24.9 % Binaural occupational hearing impairment. The Appeal Panel agrees with the appellant that there was a mathematical error in the Medical Assessor’s calculation of Binaural occupational hearing impairment which is calculated by adding the test results of “occupational % BHI” as set out in the audiogram.
Although Mr Claes submits that the Medical Assessor failed to provide an audiogram, the audiogram is, in fact, available in tabular form in Table 4. The Appeal Panel noted the Medical Assessor also included an audiogram in graphical form which was identical to the audiogram in tabular form.
In terms of the mathematical error, the Medical Assessor added up the test results of “occupational % BHI” in the audiogram, that is, 6.1+ 6.4 + 9.8 to make a total 24.8, whereas the correct total is 24.3.
Therefore, the Appeal Panel accepts that the Medical Assessor made a demonstrable error and makes the following assessment:
(a) Binaural occupation hearing impairment: 6.1 + 8.4 + 9.8 = 24.3.
(b) Less 3.3% for presbyacusis = 21%.
(c) Add 1% for severe tinnitus results in 22.0% = 11% WPI.
(d) Deduct one tenth (1.1 % WPI) pursuant to s323 (2) = 9.9% WPI which is rounded up to 10% WPI.
Mr Claes submits that the calculations on page 5 of the MAC support the assessment of 11% WPI because 10% of 22.5 equals 2.25, 22.5 minus 2.25 equals 20.25, which rounded up equates to 20.5% BHL (11% WPI).
The Appeal Panel notes that there is a mistake in Mr Claes’ submission in relation to the calculations on page 5 of the MAC. The Appeal Panel notes that 22.25 is rounded up to 22.3 and is not rounded up to 22.5 (see part 9.13 of the Guidelines).
Ground 2 – Incorrect application of Table 9.1
The appellant submits that in the event that the Appeal Panel does not agree with the appellant’s submissions regarding the mathematical error in calculating the BHI, the Medical Assessor incorrectly applied table 9.1 of the Guidelines to convert the BHI assessment to WPI.
The Medical Assessor states “As a deduction of 10% is indicated under Section 323,
Mr Claes therefore has a binaural high tone sensori-neural noise induced hearing loss of 20.2%, which represents a whole person impairment of 11%.” The Appeal Panel finds that there is an incorrect application of Table 9.1. Firstly, a BHI of 20.2% translates to 10% WPI rather than 11% WPI using Table 9.1. Secondly, the 1/10th deduction using s 323 is a 1/10th deduction of the WPI as the Panel has applied above.The Appeal Panel is satisfied that the Medical Assessor made a mathematical error in calculating the total binaural hearing impairment which is 22.0% rather than 22.5%. However the Appeal Panel find both results translate to 11% WPI using Table 9.1. The Appeal Panel find there is an error in calculating the 1/10 deduction and find the resulting WPI to be 10% rather than 11%.
For these reasons, the Appeal Panel has determined that the MAC issued on
26 September 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W24125/24 |
Applicant: | Jeffrie Willem Claes |
Respondent: | UGL Operations and Maintenance (Services) Pty Ltd |
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 Kenneth Howison 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 |
| 01/11/2023 | 500 | 65 | 50 | 10.2 | - |
| 1000 | 65 | 50 | 12.8 | - | |
| 1500 | 65 | 45 | 8.9 | - | |
| 2000 | 65 | 45 | 6.7 | 6.1 | |
| 3000 | 90 | 75 | 8.8 | 8.4 | |
| 4000 | 90 | 90 | 9.1 | 9.8 | |
| TOTAL % BHI: 56.5 | |||||
| Less Pre-existing non-related loss: 32.2 | |||||
| Less Presbyacusis correction: 3.3 | |||||
| Add % of severe tinnitus: 1.0 | |||||
| Adjusted total % BHI: 22.0 | |||||
| Resultant total BHI of 22.0 % = 11 % whole person impairment (Table 9.1) | |||||
As a deduction of 10% under Section 323 applies, 1.1% WPI is deducted resulting in
an assessment of 9.9% that is rounded up to 10%WPI.
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.
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