Williams v Chandler MacLeod Group Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Williams v Chandler MacLeod Group Limited [2024] NSWPICMP 234
APPELLANT:	Wayne John Williams
RESPONDENT:	Chandler MacLeod Group Limited
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Raj Thandavan
MEDICAL ASSESSOR:	Henley C Harrison
DATE OF DECISION:	15 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Hearing loss due to occupational noise exposure; worker appealed on the basis of the deduction for non-occupational hearing loss; Appeal Panel could discern no error; the Medical Assessor (MA) took a thorough history, conducted a physical examination, and evaluated the audiological findings taken on the day of examination using his clinical judgment; MA excluded the losses below 2000Hz as being unrelated to occupational noise exposure in the exercise of his clinical judgement by relying on his clinical findings including his audiogram, the history taken on the day of examination and taking into clear account the extent and duration of the noise exposure in the circumstances of this case; he considered the losses below 2000Hz to relate to non-occupational hearing loss for the reasons which he explained and the Appeal Panel can discern no error in this approach which was open to the MA and in accordance with correct criteria in the guidelines; Held – there was an obvious calculation error which made no difference to the WPI assessed but the error was corrected on appeal and so the Medical Assessment Certificate was revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 November 2023 Mr Wayne John Williams (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 20 October 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):
· 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 sought that he 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 in the assessment of whole person impairment. There was a minor and obvious calculation error which the Appeal Panel could correct on appeal without the need for a re-examination. 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.

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.
It is noted that the appellant indicated on the appeal form that he wished the opportunity to present oral submissions to the Appeal Panel. The appellant made detailed written submissions. The appellant’s written submissions did not expand on the reasons for his application for oral hearing. The Appeal Panel considers that the detailed written submission from both parties are sufficiently comprehensive to enable the Appeal Panel to determine the matter without the delay and expense of an oral hearing.

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: 01 March 2018
·    Body parts/systems referred: ENT related structures
·    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
01/03/2018	500	25	35	2.5	-
1000	40	35	6.3	-
1500	40	35	5.1	-
2000	40	40	4.8	4.8
3000	45	45	4.1	4.1
4000	55	60	5.3	5.3
TOTAL % BHI: 28.1
Less Pre-existing non-related loss: 14.3
Less Presbyacusis correction: 1.3
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 14.5
Resultant total BHI of 14.5 % = 8.0 % whole person impairment (Table 9.1)

The worker 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)    by failing to take a proper history of any relevant pre-existing conditions that would account for deduction applied by the medical assessor for non-occupational impairment;
(b)    by failing to adequately record proper reasons for the finding of non-occupational impairment;
(c)    by failing to record any history of any conditions which may have affected the appellant’s hearing;
(d)    by failing to make any reference to material before him to explain the deduction applied, and
(e)    by failing to provide sufficient reasoning or explanation as to why the findings and audiograms of both independent specialists have differed.
In summary, the respondent employer Chandler MacLeod Group Limited (the respondent) submitted there is no error (apart from a slight calculation error which made no difference to the final assessment) and no assessment on the basis of incorrect criteria and the final assessment of 8% WPI should be confirmed.
The Medical Assessor took a history as follows: (emphasis in original)
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Williams has been aware of loss of hearing for many years. Mr Williams has had a ringing tinnitus for about ten years more marked in the left ear. He has not consulted an ENT Surgeon in relationship to his tinnitus.
·    Present treatment: Mr Williams has worn a hearing aid in his left ear for three years and for one month in both ears.
·    Present symptoms: Deafness and tinnitus
·    Details of any previous or subsequent accidents, injuries or condition: There is a non-occupational hearing impairment of 14.3%.
·    General health: Mr Williams has anxiety and Post-Traumatic Stress Disorder.
There was no history given of –
§ hereditary deafness
§ acute acoustic trauma
§ severe head injury
§ middle ear infection
§ ear disease
§ otalgia
§ aural surgery
§ military service
§ ototoxic drug therapy
§ ototoxic chemical exposure
§ tuberculosis
§ cochleotoxic infection
§ other relevant serious medical conditions
·    Work history including previous work history if relevant: Mr Williams gave a history of having been employed by Chandler MacLeod Group Limited, a labour hire company, for the last two years. He last worked at West Track Australia as a Picker for four months in a mining equipment warehouse. He was exposed to the noise of forklifts but this was not significant noise. He previously worked through Chandler MacLeod at West Track Australia at OneSteel Recycling involved in the recycling of scrap metal. He worked as a Forklift Driver and Storeman and was exposed to very loud noise in this employment. Mr Williams describes having to shout above the background noise of machinery and conveyor belts.
Prior to this he was similarly employed through Chandler MacLeod at OneSteel in Mayfield for eight months and was once again exposed to loud noise.
Before that he worked at HE Parts as a Storeman through Chandler MacLeod for six months and was not exposed to loud noise.
Prior to this he was employed by Orica at Kooragang as a Forklift Driver and Plant Operator in a chemical manufacturing factory and was once again exposed to loud noise.
Mr Williams explained that for most of his working life he had worked in loud noise in factories and warehouses. In summary, his last noisy employer is Chandler MacLeod Group Limited.
Social activities/ADL: Mr Williams has trouble understanding speech where there is background noise and this causes him to feel socially isolated and have loss of confidence. He also has difficulty with the television and the telephone and problems interacting with friends and family. Mr Williams’ tinnitus affects both his sleep and concentration.”
The Medical Assessor recorded his findings on physical examination as follows:
“On examination both tympanic membranes are normal and intact and audiometry shows a bilateral high tone sensori-neural hearing loss.
Pure tone audiometry was carried out in a suitable sound treated room that has been tested and shown to meet specifications laid out in AS/NZS 1269 using a calibrated audiometer. I considered the auditory thresholds to be valid and the patient’s responses were repeatable. Please find enclosed a copy of the audiogram.”
The Medical Assessor noted that he had regard to the two independent medical expert opinions as follows:
“Report of Dr Joseph Scoppa – 21 October 2020
Report of Dr Sylvester Fernandes – 11 May 2022”
The Medical Assessor summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses:
Bilateral high tone sensori-neural hearing loss.
consistency of presentation
Mr Williams’ presentation was consistent with the history given and my clinical examination.”
The Medical Assessor explained his impairment assessment as follows:
“THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
I based my percentage assessment of binaural hearing loss on the audiogram I carried out on 09 October 2023, the history given by the worker and my clinical examination.
REASONS FOR ASSESSMENT
a.   My opinion and assessment of whole person impairment
In summary, Mr Williams has a binaural high tone sensori-neural noise induced hearing loss of 14.5%, which represents a whole person impairment of 8.0%. This hearing loss is permanent and has reached maximum medical improvement (i.e. when the hearing loss is well stabilised and is unlikely to change substantially in the next year with or without medical treatment).
In making that assessment I have taken account of the following matters:-
o   The normality of the tympanic membranes,
o   The history of noise exposure,
o   The shape of the audiogram.
b.   An explanation of my calculations (if applicable)
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 Williams has been exposed and the shape of my 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.
As the notional date of injury is after 1 January 2002, calculations have been made based on the National Acoustic Laboratory Tables of 1988.
ASSESSMENT OF WPI (Whole Person Impairment)
I have assessed Mr Williams’ WPI, attributed to his noise induced hearing loss, using the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition, 01 March 2021.
I have calculated Mr Williams’ permanent hearing impairment due to industrial deafness, using the recommended Workers Compensation Guidelines.
Assessment of Total Binaural Hearing Impairment
Binaural hearing impairment (section 9.9)  =         28.1%
Less presbyacusis correction (section 9.10)  =           1.3%
Add loading for severe tinnitus (section 9.11)  =           2.0%
Total binaural hearing impairment  =         28.8%
WPI (Whole Person Impairment) Table 9.1  =         14.0%
Assessment of Occupational Hearing Impairment
Binaural occupational hearing impairment (section 9.9)  =         14.2%
Less presbyacusis correction (section 9.10)  =           1.3%
Add loading for severe tinnitus (section 9.11)  =           2.0%
Total binaural occupational hearing impairment  =         14.5%
WPI (Whole Person Impairment) Table 9.1  =           8.0%
Assessment of Non-Occupational Hearing Impairment                 =         14.3%
WPI (Whole Person Impairment) Table 9.1  =           7.0%”
The Medical Assessor made brief comment on the other medical opinions before him including explaining why his opinion differed as follows:
“My audiogram is not the same as the audiogram carried out by Dr Scoppa. I did not find a significant difference in hearing between the left and right ear. I disagree with Dr Scoppa using the low frequencies in the right ear as being due to noise induced hearing loss, as on my audiogram this part was flat and noise induced hearing loss is progressive from the low to the high frequencies. I agree with Dr Scoppa making an allowance of 2% for severe tinnitus.
My audiogram is not the same as the audiogram carried out by Dr Fernandes. I disagree with him not making an allowance for severe tinnitus. I agree with Dr Fernandes that the loss of hearing at 2000, 3000 and 4000 Hz is as a result of exposure to unacceptable noise levels. I disagree with Dr Fernandes equating the loss of hearing in the left ear to that of the right, as my audiogram did not show any significant difference in hearing between the left and the right ear.”
The Medical Assessor made a deduction for hearing loss which he considered to be unrelated to noise induced hearing loss but did not which he set out in his MAC 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:
(i)A non-occupational hearing impairment.
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:
(i)There is a non-occupational hearing impairment of 14.3%.
c.   The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)
There is no deductible proportion”
The appellant complains on appeal that the Medical Assessor has made a significant deduction for non-occupational hearing loss without a proper history or recording findings on examination that might account for this hearing loss.
What the Medical Assessor has done is exclude the losses below 2000Hz as being the result of non-occupational hearing loss and take into account the losses at 2000Hz to 4000Hz as being the result of occupational hearing loss.
The % BHI, total and occupational, figures are set out in his certificate as follows:

Total % BHI

Occupational % BHI

2.5

-

6.3

-

5.1

-

4.8

4.8

4.1

4.1

5.3

5.3

The total % BHI is 28.1 which is the loss at all frequencies. The Medical Assessor has excluded the losses below 2000Hz as unrelated to occupational noise exposure.
Excluding the losses below 2000Hz means that the sum of the losses below 2000Hz (2.5 + 6.3 + 5.1) which the Medical Assessor said totalled 14.3 has been deducted from the total % BHI of 28.1. The Appeal Panel notes that the respondent concedes that this is an error in the calculations because the losses below 2000Hz in fact total 13.9. However, it is also noted that this error makes no difference to the final calculation of WPI at 8%.
The Medical Assessor then did not make a further deduction under s 323 for the pre-existing condition, injury or abnormality because he took into account non occupational hearing loss by excluding the losses at the lower frequencies (500, 1000 and 1500Hz).
The Medical Assessor correctly stated as follows:
“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.”
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 per the Medical Assessor audiogram the findings are flat until 2000Hz and then they progress in the higher frequencies consistent with industrial deafness as follows:

Frequency Hz	Left dB HL Air Bone		Right dB HL Air Bone
500	25	35
1000	40	35
1500	40	35
2000	40	40
3000	45	45
4000	55	60

As per the audiogram conducted on the day of examination, the decibel levels are worse at the higher frequencies. The Medical Assessor excluded the losses below 2000Hz in the exercise of his clinical judgment relying on his clinical findings including his audiogram, the history taken on the day of examination and taking into account the extent and duration of the noise exposure in the circumstances of this case. The Medical Assessor is entitled to rely on his audiogram taken on the day of examination and he has explained in sufficient detail where his opinion differs from the other experts whose opinions were in evidence before him.
He has explained why his opinion differs from Dr Scoppa the IME qualified on behalf of the appellant as follows noting he agreed with the assessment for severe tinnitus:
“My audiogram is not the same as the audiogram carried out by Dr Scoppa. I did not find a significant difference in hearing between the left and right ear. I disagree with Dr Scoppa using the low frequencies in the right ear as being due to noise induced hearing loss, as on my audiogram this part was flat and noise induced hearing loss is progressive from the low to the high frequencies. I agree with Dr Scoppa making an allowance of 2% for severe tinnitus.”
He explained where he agrees with Dr Fernandes, the IME qualified to provide an opinion on behalf of the respondent, in using the losses at 2000Hz, 3000Hz and 4000Hz and excluding the losses below and otherwise where his opinion differs:
“My audiogram is not the same as the audiogram carried out by Dr Fernandes. I disagree with him not making an allowance for severe tinnitus. I agree with Dr Fernandes that the loss of hearing at 2000, 3000 and 4000 Hz is as a result of exposure to unacceptable noise levels. I disagree with Dr Fernandes equating the loss of hearing in the left ear to that of the right, as my audiogram did not show any significant difference in hearing between the left and the right ear.”
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 2000 to 4000 Hz, consistent with industrial deafness. The Medical Assessor is entitled to rely on his clinical findings including his audiogram on the day of examination.
The explanations given by the Medical Assessor show that he has had due regard to any differing opinion that was before him and he has adequately explained why his opinion differs noting importantly that the MAC must be read as a whole.
When the MAC is read as a whole it is readily apparent that the Medical Assessor has taken a full history in relation to other conditions that may affect hearing as follows:
“There was no history given of –
He conducted a thorough physical examination of which he noted:
“On examination both tympanic membranes are normal and intact and audiometry shows a bilateral high tone sensori-neural hearing loss.”
The finding that the tympanic membranes are normal excluded middle ear dysfunction which would also include any nasal pathology affecting the ears. There is a presumption of regularity in the conduct of the examination that applies such that if no specific abnormality is mentioned in the ENT system then none has been found on clinical examination and this accords with standard medical practice that records only the positive findings relevant to the examination.
The assessment by the Medical Assessor accords with the correct criteria laid out in the guidelines at paragraph 9.1 which provides as follows:
“9.1 A worker may present for assessment of hearing loss for compensation purposes before having undergone all or any of the health investigations that generally occur before assessment of permanent impairment. For this reason, and to ensure that conditions other than ‘occupational hearing impairment’ are precluded, the medical assessment should be undertaken by an ear, nose and throat specialist or other appropriately qualified medical specialist. The medical assessment needs to be undertaken in accordance with the hearing impairment section of AMA5 Table 11-10 (pp 272–275). The medical specialist performing the assessment must examine the worker. The medical specialist’s assessment must be based on medical history and ear, nose and throat examination, evaluation of relevant audiological tests, and evaluation of other relevant investigations available to the medical assessor. Only medical specialists can sign medical reports.”
The guidelines go on to provide at 9.4 as follows:
“9.4 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.”
This exactly what the Medical Assessor has done in this case. He has taken a through history as set out above, conducted a physical examination, and evaluated the audiological findings taken on the day of examination using his clinical judgment. The Medical Assessor excluded the losses below 2000Hz as being unrelated to occupational noise exposure in the exercise of his clinical judgement by relying on his clinical findings including his audiogram, the history taken on the day of examination and taking into clear account the extent and duration of the noise exposure in the circumstances of this case. He considered the losses below 2000Hz to relate to non-occupational hearing loss for the reasons which he explained and the Appeal Panel can discern no error in this approach which was open to the Medical Assessor and in accordance with correct criteria in the guidelines.
He has not made a further deduction under s 323 for a pre-existing condition, rather he has excluded the losses below 2000Hz in calculating the impairment caused by occupational noise exposure. This approach was open to the Medical Assessor in the exercise of his clinical judgment and accords with the correct criteria in the Guidelines.
Accordingly the Appeal Panel will confirm the 8% WPI finding but will revoke the MAC to correct the error in calculations as set out above such that the new MAC will be issued as follows:

Injury deemed to have happened on:	Frequency Hz	Left dB HL Air Bone		Right dB HL Air Bone		Total % BHI	Occupational % BHI
01/03/2018	500	25	35	2.5	-
1000	40	35	6.3	-
1500	40	35	5.1	-
2000	40	40	4.8	4.8
3000	45	45	4.1	4.1
4000	55	60	5.3	5.3
TOTAL % BHI: 28.1
Less Pre-existing non-related loss: 13.9
Less Presbyacusis correction: 1.3
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 14.6
Resultant total BHI of 14.6 % = 8.0 % whole person impairment (Table 9.1)

This means the MAC will need to be revoked to correct the obvious error in mathematical calculation. Otherwise, the Appeal Panel notes that it has confirmed the assessment of the Medical Assessor at 8% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
20 October 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:	W6251/23
Applicant:	Wayne John Williams
Respondent:	Chandler MacLeod Group Limited

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:

Injury deemed to have happened on:	Frequency Hz	Left dB HL Air Bone		Right dB HL Air Bone		Total % BHI	Occupational % BHI
01/03/2018	500	25	35	2.5	-
1000	40	35	6.3	-
1500	40	35	5.1	-
2000	40	40	4.8	4.8
3000	45	45	4.1	4.1
4000	55	60	5.3	5.3
TOTAL % BHI: 28.1
Less Pre-existing non-related loss: 13.9
Less Presbyacusis correction: 1.3
Add % of severe tinnitus: 2.0
Adjusted total % BHI: 14.6
Resultant total BHI of 14.6 % = 8.0 % 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 234

15 April 2024