White v PDA Holdings Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	White v PDA Holdings Pty Ltd [2022] NSWPICMP 453
APPELLANT:	Geoffrey Edward White
RESPONDENT:	PDA Holdings Pty Ltd
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Brian Williams
DATE OF DECISION:	11 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Noise-induced hearing loss; Medical Assessor (MA) excluded loss at 500 Hz and made a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of a period of self-employment; long working life but not exposed to noise all day; MA gave reasons and no error in not including loss at 500Hz; operation of section 17 of the Workers Compensation Act 1987; Commissioner for Railways v Bain, Blayney Shire Council v Lobley, Rico v Roads and Traffic Authority, A & G Engineering v Civitarese applied; MA in error to rely on section 323 of the 1998 Act in respect of period of self-employment; Pereira v Siemens Limited distinguished; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 July 2022 Geoffrey Edward White lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sylvester Fernandes, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 July 2022.
Mr White relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr White was employed by PDA Holdings Pty Ltd (PDA) as the manager of the liquor store at Shoal Bay Country Club. He ceased that employment in December 2017. PDA did not dispute that it was Mr White’s last noisy employer for the purpose of s 17 of the Workers Compensation Act 1987 (the 1987 Act).
Mr White had been employed as a liquor store manager by various employers since 2005. Between 1980 and 2005 he was self-employed as the owner of a grocery and liquor store. Mr White said in his statement that for 10 years before that he was employed by Edgells which was noisy. He also worked as a bank teller for four years, which he said was not noisy and for a year in sales which was noisy.
The Medical Assessor accepted that Mr White’s employment was noisy – particularly his exposure to fork lifts, trucks, bottle noise and colliding beer kegs. The Medical Assessor diagnosed noise induced hearing loss in the upper middle and treble frequencies. He said there was an excess loss of non-occupational origin in the bass frequencies. He accepted that the losses at 1, 1.5, 2, 4 and 4 kHz were caused by occupational noise exposure. After a deduction for presbycusis and an allowance for tinnitus, the Medical Assessor assessed 21.7% binaural hearing loss. He made a deduction of one-tenth under s 323 of the 1998 Act in respect of the period when Mr White was self-employed. His final assessment was 19.53% binaural hearing loss, which converts to 10% whole person impairment (WPI).

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
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 is sufficient material in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary and in submissions prepared by his solicitor, Mr Glavin, Mr White said that the Medical Assessor made a demonstrable error in failing to include the loss at 0.5 kHz, relying on the Medical Appeal Panel decision in Shone v Country Energy[1] (Shone). He also contended that the Medical Assessor failed to provide reasons for not including the loss at 0.5 kHz.
[1] [2007] NSWWCCMA 18.
Mr White said that the Medical Assessor made a demonstrable error by making a speculative deduction under s 323 because there was no evidence that there was a pre-existing condition as a result of his period of self-employment, referring to Pereira v Siemens Limited[2] (Pereira). In the alternative, Mr White relied on the Medical Appeal Panel decision in Hay v Stanton Family Trust t/as Lakeside Leisure Village[3] in which the Appeal Panel set out the authorities with respect to the operation of s 17 and said that Pereira did not support a s 323 deduction in respect of a period of self-employment.
[2] [2015] NSWSC 1133.
[3] Unreported M1-6422/20.
In reply and in submissions prepared by Mr Robison of counsel, PDA submitted that it was open to the Medical Assessor in the exercise of his clinical judgement to exclude the loss at 0.5 kHz and that he provided seven reasons for doing so. With respect to s 323 of the 1998 Act, Mr Robison submitted that a deduction of one-tenth was appropriate in the absence of objective evidence.

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[4] 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.
[4] [2006] NSWCA 284.

Inclusion of 0.5kHz

Mr White relied on Shone to argue that there was a demonstrable error in failing to allow the loss assessed at 0.5 kHz, setting out matters which he said the decision “provided” as if it was legislation or binding authority. No Medical Appeal Panel decision is an authority binding on other panels in the way that Supreme Court judicial review decisions are.
Shone is merely an example of a case in which it was appropriate to include the low tones in the assessment of noise induced hearing loss because of the long period in particular noisy employment. It does not require Medical Assessors or Appeal Panels to include the low tones in every case in which a worker had been employed in noisy employment for a long period. The Medical Assessor was required to assess Mr White’s hearing loss and to exercise his clinical judgement in determining whether to exclude the low tones.
Mr White’s statement is brief and does not set out all of the evidence necessary to determine the claim. While his working life extended over a long period, the statement says that he was exposed to noise for two to three hours a day while working for PDA and in each of his previous jobs back to 2005. He said he was exposed to noise for three to seven hours a day whilst self-employed. He did not specify the extent of noise exposure while working at Edgells though he told Dr Fagan, qualified by his lawyers, that it was for four hours a day.
The importance of Mr White’s evidence is that is shows that while he was exposed to noise, it was not for the whole of his working day. For much of the time, it was less than half the working day. There is a significant difference between Mr White’s exposure and that of a worker who worked for the same period, all day and every day, in employment such as a boilermaker.
A Medical Assessor is required to use his or her clinical judgement in making an assessment and, when assessing hearing loss, in determining which of the frequencies should be included in the assessment. Based on the history of noise exposure, it was open to the Medical Assessor not to include the loss at 0.5 kHz in the exercise of his clinical judgement.
The MAC shows that he understood that task:
“Hence after the above consideration of the nature and duration (immission levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 1, 1.5, 2, 3 and 4 KHz are caused by his occupational noise exposure.
Shone v Country Energy (2007) NSW WCC MA 18 is perennially implored as authority for inclusion of the lower frequencies, in an effort to ascribe to Shone a ‘regulatory science’ status. It is important to understand that it is not possible to impart the ‘bright-line’ of certainty of law to an essentially fluid subject (that is a function of several variables) requiring a clinical judgement (See also ‘Richardson’ [2013] NSW WCC MA 56) and fundamentally requires each case to be judged on its merits.”
The Medical Assessor was required to give reasons for doing so to explain the path of his reasoning. He gave reasons in paragraph 10 of the MAC.

Section 323

The Medical Assessor was in error to make a deduction under s 323 of the 1998 Act but not for the reasons stated by the parties, which do not have regard to the legislation with respect to the liability to pay compensation for noise-induced hearing loss and the appellate authority which explains it. Mr White’s period of self employment is not relevant to the assessment of his hearing loss or the liability to pay compensation for it.
Section 17 of the 1987 Act provides:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a)for the purposes of this Act, the injury shall be deemed to have happened—
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom,
(c)compensation is payable by—
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii)where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…”
The High Court explained in Commissioner for Railways v Bain[5] that the predecessor of s 17 deemed noise-induced hearing loss to have happened in one blow and said it was an error to apportion the loss between the various periods of work.
[5] (1965) 112 CLR 246.
In Blayney Shire Council v Lobley[6] the Court of Appeal explained that the section was not concerned with true causation but deemed the loss to have happened at one time. It required the last noisy employer to pay compensation whether or not that employment actually caused the loss.
[6] (1995) 12 NSWCCR 52.
In Rico Pty Ltd v Roads and Traffic Authority[7] Sheller JA said:
“The legislative scheme for awards of compensation for boilermaker’s deafness proceeds on the following assumptions or fictions:
1.     The condition known as ‘boilermaker’s deafness’ is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s 17(2)).
2.     A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s 17(1)).
3.     In the language of Barwick CJ, in Commissioner for Railways v Bain the injury is taken to have happened ‘as it were, in one blow’. If the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s 17(1)(a)”
[7] (1992) 28 NSWLR 679, 689-690.
The effect of s 17 was also summarised in A & G Engineering Pty Ltd v Civitarese[8] (Civitarese) where Beazley JA said:
“Section 17, as the appellant's case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, s 17 proceeds on a series of fictions or assumptions, upon which a worker's entitlement to recover an award under s 66 is based.”
[8] (1996) 41 NSWLR 41.
By the operation of s 17, all of the loss was deemed to have been suffered on the one day, being 1 December 2017 – the last day Mr White worked in relevant employment.
The Medical Assessor did not apply those principles. He sought to excise the period of self-employment and said:
“Employment as a ‘self employed’, where there is no contractual relationship between an employer and employee, does not constitute relevant employment as per Sub-section 4 of Section 68B of the 1987 Act which regulates whether a deduction pursuant to section 323 of the 1998 Act is to be made in cases to which sections 15, 16, 17 and 22 of the 1987 Act apply. Hence a deduction will apply. (See below)”
The Medical Assessor deducted one-tenth of the assessment under s 323 and did not otherwise explain his reasons.
Section 68B of the 1987 Act does not support the Medical Assessor’s deduction or the contention that a period of self-employment is to be excluded because the worker was not employed for that period. Section 68B(4) provides that s 323 does apply to the assessment of noise induced hearing loss. However, consistent with s 17, there is to be no deduction for loss suffered in previous relevant employment except to the extent that compensation has been paid or is payable. If no previous compensation has been paid, s 17 deems the last noisy employer liable for the whole of the hearing loss suffered.
The Medical Assessor erred by approaching the matter as he did, and considering whether the period of self-employment had caused part of the hearing loss.
Though not set out in his statement, Mr White told Dr Fagan that he had always worked in New South Wales.
Mr White’s submissions about the lack of evidence that his period of self-employment contributed to the loss are misguided. The potential relevance of s 323 in Pereira was that the worker had worked in noisy employment in Pakistan before coming to Australia.
Section 323 may have been relevant to Mr Pereira’s period of employment in Pakistan because the 1987 Act does not have extraterritorial operation. Therefore, any noise-induced hearing loss suffered overseas before working for an employer in New South Wales may give rise to a s 323 deduction if the relevant factual evidence is available.
Basten JA described the operation of the legislation in Lennon v TNT Australia Pty Ltd[9]:
“The second authority in this Court relied on by the applicant was A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41. The facts in that case involved, relevantly for present purposes, two periods of noisy employment, the latter being in the Northern Territory. It was common ground that the State Act did not apply in respect of employment in the Territory: Mynott v Barnard [1939] HCA 13; 62 CLR 68, referred to in A & G Engineering at 44. The applicant was the last employer in New South Wales with whom the respondent had worked in noisy conditions. The judgment of Beazley JA (with whom Handley and Sheller JJA agreed) continued:
‘That being so, s 17 operates so as to make the appellant the last employer. In other words, the appellant is the last employer to whom the legislation applies and is thus liable to pay compensation. This construction of s 17 is confirmed by this Court's decision in Russo.... In that case, the Commonwealth was the last noisy employer and the respondent the noisy employer before that. It was held that, as the Commonwealth was not bound by the provisions of the New South Wales legislation, the respondent was the last noisy employer for the purposes of s 17 and thereby liable to pay compensation.’"
[9] [2013] NSWCA 77.
Garling J found in Pereira that there was insufficient factual evidence to demonstrate that the worker had been exposed to noise in Pakistan which was sufficient to cause injury. There was therefore no basis to make a deduction for a pre-existing injury, being noise induced hearing loss suffered outside Australia.
The reasoning in Pereira does not apply to the case of a person whose whole working life was in New South Wales. If Mr White’s last noisy employer and all others were in New South Wales, all of the loss is deemed by s 17 to have been suffered on the last day of noisy employment. Section 323 had no application to the circumstances of Mr White’s case.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 July 2022 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:	W2885/22
Applicant:	Geoffrey Edward White
Respondent:	PDA Holdings 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 Dr Sylvester Fernandes 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
1.12.2017	500	20 20	25 25	1.0	0.0
1000	25 25	30 25	2.5	2.5
1500	55 50	40 40	7.3	6.4
2000	60 60	55 55	8.5	8.5
3000	60 60	60 60	6.3	6.3
4000	65 65	70 65	6.8	6.8
TOTAL % BHI: 32.4
Less Pre-existing non-related loss (of 1.9): 30.5
Less Presbyacusis correction (of 9.8): 20.7
Add % of severe tinnitus (1.0): 21.7
Adjusted total % BHI: 21.7
Resultant total BHI of 21.7% = 11% whole person impairment (Table 9.1)

[2022] NSWPICMP 453

11 November 2022