Ye v Lin Betty Building Group Ltd
[2021] NSWPIC 154
•31 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ye v Lin Betty Building Group Ltd [2021] NSWPIC 154 |
| APPLICANT: | Wenle Ye |
| RESPONDENT: | Lin Betty Building Group Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 31 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation payable under section 66 of the 1987 Act resulting from multiple injury sustained as a result of a fall during the course of his employment with the respondent on 26 July 2017, the respondent placed hearing loss injury in issue; Held– the applicant did not sustain hearing loss as a result of the fall and the applicant’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, lumbar spine and left upper extremity is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. |
| DETERMINATIONS MADE: | The Commission notes: 1. The bilateral tinnitus and injuries sustained by the applicant to his cervical spine, his lumbar spine, his left upper extremity (shoulder, forearm, trigger finger) in the incident occurring on 26 July 2017 are not disputed by the respondent. The Commission determines: 2. Award for the respondent relevant to alleged hearing loss sustained by the applicant in the incident occurring on 26 July 2017. |
| ORDERS MADE: | 3. The applicant’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, lumbar spine and left upper extremity (shoulder, forearm, trigger finger) in the incident occurring on 26 July 2017 is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment. 4. The following documents are admitted by consent and are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute and attached documents, and A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Wenle Ye (the applicant) commenced employment with Lin Betty Building Group Ltd (the respondent) in June 2017, working as a gyprocker. He worked on a full time basis. He is currently 61 years of age. On 26 July 2017 the applicant sustained multiple injuries when he fell to the ground from a ladder during the course of his employment. The applicant has not returned to work with the respondent since his fall.
The applicant made a claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 28% whole person impairment resulting from the injuries he sustained to his cervical spine, his lumbar spine, his left upper extremity and hearing loss/tinnitus in his fall.
The respondent disputed the applicant’s claim for permanent impairment compensation and issued noticed dated 16 October 2020 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998, placing alleged loss of hearing in issue with submission that while the evidence indicated tinnitus resulted from the incident occurring on 26 July 2017, tinnitus can only be assessed for the purpose of assessment of permanent impairment when connected with loss of hearing. The respondent otherwise made an offer to the applicant to resolve his claim for permanent impairment compensation for 19% whole person impairment resulting from the injuries he sustained to his cervical spine, his lumbar spine and his left upper extremity.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) loss of hearing injury sustained on 26 July 2017, and
(b) level of permanent impairment resulting from multiple injuries sustained on 26 July 2017.
The parties agree that the following issues are not in dispute:
(a) Injuries sustained on 26 July 2017 to the cervical spine, lumbar spine, left upper extremity and tinnitus.
(b) Tinnitus cannot be assessed for permanent impairment without hearing loss.
PROCEDURE BEFORE THE COMMISSION
The parties attended a teleconference on 19 April 2021. Mr Young, solicitor appeared for the applicant. Ms Munro, solicitor appeared for the respondent. The applicant was also present and was assisted by Ms Shen, interpreter in the Mandarin language. As the applicant’s claim could not resolve on that occasion, it was listed for conciliation/arbitration hearing on 3 May 2021.
The parties attended the conciliation/arbitration hearing on 3 May 2021. Mr Loukas of counsel appeared for the applicant, instructed by Mr Young, solicitor. Ms Grotte of counsel appeared for the respondent, instructed by Ms Munro, solicitor. The applicant was present and was assisted by Ms Halliday, interpreter in the Mandarin language.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents, and
(c) Application to Admit Late Documents lodged by the applicant dated 20 April 2021 and attached documents (A AALD).
Oral evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses
FINDINGS AND REASONS
Review of the evidence
A brief summary of evidence follows.
Applicant’s statement
In his statement dated 21 December 2020[1] the applicant said he commenced work with the respondent in June 2017, with his duties involving gyprock installation. He said he wore ear protection while undertaking his work duties.
[1] ARD at page 2.
The applicant confirmed he fell to the ground from a ladder while at work on 26 July 2017. He lost consciousness as a result of the fall. The applicant said that on regaining consciousness, the left side of his body and his face was aching and bruised. The applicant was medically assessed at IMMEX Waterloo with initial diagnosis of a fracture to his left radius and treatment by way of a cast. The applicant consulted with his general practitioner, Dr Lam the following day, 27 July 2017, and said he made complaints of “pain in my head, eyes, neck, tooth, hearing/tinnitus in both ears, left shoulder, left arm, left hand/wrist, lower back, left leg” to both Dr Lam and his “family doctor”. The applicant said that prior to the incident occurring on 26 July 2017 he had suffered no hearing loss or tinnitus.
Relevant to his complaint of bilateral hearing loss and tinnitus, the applicant said Dr Lam referred him to Dr Kapila, Ear Nose and Throat surgeon (ENT).
Treating medical evidence
Dr Lam, General Practitioner
The clinical records of the applicant’s general practitioner, Dr Lam, relevantly note the applicant’s complaints at consultation on 27 July 2017 included bilateral tinnitus but make no mention of a loss of hearing. A CT Brain conclusion report on 28 July 2017 was in the following terms:
“No fracture intracerebral or extracerebral haemorrhage or cerebral haemorrhagic contusion identified”.
In her clinical records Dr Lam made reference on 27 July 2017 to the applicant having come from China “recently”. She subsequently made reference on 4 December 2017 to the applicant having “been working in the construction industry for years” and having previously been “a business owner in China – accepts contracts then employs workers for building sites”.
Dr Woo, Orthopaedic Surgeon
The clinical records of Dr Woo[2] demonstrate the applicant was referred to Dr Woo by Dr Lam relevant to management of his left sided incomplete radial fracture. In his initial report dated 9 August 2017[3] Dr Woo reported a history of complaint that included bilateral tinnitus. In a subsequent report dated 23 August 2017[4] Dr Woo noted the applicant’s complaint of bilateral tinnitus was to be assessed by an ENT. There is no mention in Dr Woo’s reporting of loss of hearing.
Dr Pope, Neurosurgeon
[2] ARD at page 428.
[3] ARD at page 429.
[4] ARD at page 432.
The reports of Dr Pope demonstrate the applicant was referred to Dr Pope by Dr Lam. In his initial report dated 22 August 2017[5] Dr Pope noted the applicant’s complaint of tinnitus but there is no further mention in Dr Pope’s subsequent reporting on 29 August 2017[6], 10 October 2017[7], 28 November 2017[8] or 17 April 2018 of complaint of tinnitus. There is no mention in Dr Pope’s reporting of loss of hearing.
Dr Kapila, ENT
[5] Reply at page 44.
[6] Reply at page 45.
[7] Reply at page 47.
[8] Reply at page 49.
In his initial report dated 5 September 2017[9] Dr Kapila recorded the applicant’s fall at work on 26 June 2017 and noted the applicant’s report he “couldn’t hear clearly in both ears” when he regained consciousness. Dr Kapila reported at that time the applicant’s main complaint was that of diagnosed bilateral non-pulsatile tinnitus. While examination of both ears appeared “normal”, with clinical testing demonstrating possible sensorineural symmetry on the right, Dr Kapila arranged formal pure tone audiometry with review.
[9] ARD at page 472.
In his report dated 12 October 2017[10] Dr Kapila noted the applicant’s pure tone audiometry demonstrated an asymmetry of approximately 10 decibels, which was the contralateral side to the side of the injury. As such, Dr Kapila did not believe the applicant’s hearing loss was related to his fall. Relevant to his mild hearing loss, while Dr Kapila’s recommendations included MRI and blood tests, the applicant’s preference was for repeat audiogram in 6 months, with review.
[10] ARD at page 474.
In his report dated 15 March 2018[11] Dr Kapila confirmed the applicant seemed most troubled by bilateral high pitched non-pulsatile tinnitus, which had been present at earlier review. Dr Kapila reported he once again provided the applicant with tinnitus counselling and his diagnosis on this occasion included right sensorineural asymmetry (with comment he did not believe this to be responsible for the bilateral symmetrical tinnitus the applicant suffered). The applicant mentioned to Dr Kapila “he had been under some stress as well as some ongoing pain with his neck and shoulder”, which Dr Kapila considered could be contributing to the bilateral symmetrical tinnitus he suffered. Dr Kapila’s recommendation on this occasion included repeat audiogram, with review.
[11] ARD at page 476.
In his report dated 1 May 2018[12] Dr Kapila agreed with Dr Lam that the “persistent and chronic pain” impacting on the applicant’s mental state “could certainly be in keeping with his ongoing sensation of bilateral continuous high pitched non-pulsatile tinnitus”. Relevant to the cause of the immediate early stage tinnitus the applicant reportedly suffered, Dr Kapila accepted “even acute stress from the injury itself could be a simple explanation for his tinnitus at that time” with note “it certainly does sound as though it was a stressful time given the nature of his fall”. Dr Kapila expressed particular concern on this occasion about the applicant’s repeat audiogram in that it demonstrated a sensorineural asymmetry, which was slightly worse. With it being a single frequency and contralateral to the side of the applicant’s fall, while Dr Kapila did not believe the loss of hearing was secondary to the fall he accepted the nature of the hearing loss required investigation with blood tests and an MRI. While the applicant’s case manager reported to Dr Kapila that the MRI-Brain already undertaken was unremarkable, Dr Kapila did not have the opportunity to review the scan or the reporting. Dr Kapila ordered the blood tests relevant to a sensorineural asymmetry, with review.
[12] ARD at page 478.
No further reporting is available from Dr Kapila.
Dr Teychenne, Neurologist
The clinical records of Dr Teychenne[13] demonstrate the applicant was referred to Dr Teychenne by Dr Lam.
[13] ARD at page 437.
Dr Teychenne provided a report on 28 May 2019[14] in which he reported that when the tinnitus the applicant suffered was severe “he had decreased hearing in both ears”. Following testing on this occasion, which “in view of the tinnitus and episodic deafness” included a Brainstem Evoked Response, Dr Teychenne reported although the Brainstem Evoked Response through the right ear was normal he was unable to obtain any response through the left ear, which he said “could be consistent with sensorineural deafness”. Dr Teychenne concluded at that time the applicant “may have sustained damage to the left acoustic nerve in view of the absent left brainstem evoked response testing. The damage could also have been to the left internal auditory meatus”. In his report dated 2 July 2019 Dr Teychenne reported the applicant had noted “bilateral tinnitus and hearing loss” as a result of his fall. In his report on 15 October 2019[15] Dr Teychenne included reference to bilateral tinnitus. In his report dated 22 October 2019[16] Dr Teychenne provided comment that in his experience tinnitus is a common feature in patients with incomplete cervical cord lesion, which he suggested was consistent with his clinical findings. On review on 29 October 2019[17] the applicant reportedly continued to complain of bilateral tinnitus.
[14] ARD at page 443.
[15] ARD at page 438.
[16] ARD at page 440.
[17] ARD at page 442.
There is no further reporting from Dr Teychenne.
Dr Kadir, Orthopaedic surgeon
The clinical records of Dr Kadir[18] demonstrate the applicant was referred to Dr Kadir by Dr Lam relevant to management of the injuries he had sustained to his left shoulder, left forearm and left middle finger triggering. There is no mention in Dr Kadir’s reporting of the applicant’s loss of hearing or bilateral tinnitus.
Dr Young, Orthopaedic Surgeon
[18] ARD at page 481.
The clinical records of Dr Young[19] demonstrate the applicant was referred to Dr Young by Dr Lam relevant to management of his left shoulder and neck pain. There is no mention in Dr Young’s reporting of the applicant’s loss of hearing or bilateral tinnitus.
Independent medical evidence
[19] ARD at page 455.
Dr Giblin, Orthopaedic Surgeon
Dr Giblin provided an independent medical examiner’s report dated 27 April 2020[20]. The report is relevant to the applicant’s claim for permanent impairment compensation resulting from the injuries the applicant sustained to his cervical spine, lumbar spine and left upper extremity in the incident occurring on 26 July 2017. There is no mention in Dr Giblin’s reporting of the applicant’s loss of hearing or bilateral tinnitus.
[20] ARD at page 54.
Dr Millons, General Surgeon
Dr Millons provided two independent medical examiner’s reports. His substantive report is dated 24 August 2020[21] and his supplementary report is dated 6 October 2020[22]. In his initial report Dr Millons noted that in the incident on 26 July 2017 the applicant appeared to have sustained injuries which included a concussive head injury that left him with some hearing loss and tinnitus. Dr Millons noted complaint of bilateral tinnitus at assessment but accepted he was not competent to comment on injuries of this nature. In response to specific questioning as to whether the applicant had suffered any spinal cord injury as the result of the incident on 26 July 2017, he said he could not really comment as he had not seen any of Dr Teychenne’s reporting. In his supplementary report, which included review of the reports of Dr Teychenne, Dr Millons noted Dr Teychenne’s diagnosis of an incomplete cervical cord lesion. While accepting such diagnosis was more in the realm of a neurologist, Dr Millons provided comment he found nothing on clinical examination to support such diagnosis and neither did Dr Pope provide such diagnosis. Dr Millons recorded an employment history of the applicant which includes reference to the applicant having worked as a gyprocker “in a few places” since having come to Australia.
[21] ARD at page 22.
[22] ARD at page 37.
Dr Raj, ENT
Dr Raj provided two independent medical reports. He provided a substantive report dated 8 July 2020[23] and a supplementary report dated 8 July 2020[24]. Dr Raj noted the incident occurring on 26 July 2017 while the applicant was working as a gyprocker. He noted the applicant had reportedly fallen “more on to his left side”, sustained a head injury and lost consciousness. Dr Raj described the applicant as suffering discomfort in his left ear after the incident with “a loud tinnitus initially on the left but now is central or bilateral”. Dr Raj described the applicant as reporting “’[H]e did not think he had an associated hearing loss or vertigo”. Dr Raj relevantly noted the reporting of Dr Kapila and Dr Teychenne. Following clinical examination and review of the tympanogram from testing on 7 July 2020, Dr Raj provided diagnosis in the following terms:
“Traumatic head injury, and associated hearing loss and tinnitus. The main cause of the tinnitus is difficult to determine. Head injury and the mild hearing loss are sufficient to principate bilateral tinnitus. Injury and pathology of the cervical spine also contributes to the tinnitus. His psychological status determines the severity of the tinnitus and is the ability to manage the noise”.
[23] A AALD at page 2.
[24] ARD at page 51.
Dr Raj accepted the applicant’s hearing loss “is almost normal except for a slight loss at 4000Hz” and the applicant’s main problem was his tinnitus. In his supplementary report relevant to assessment of permanent impairment Dr Raj correctly pointed out tinnitus cannot be assessed without hearing loss. He was however of the view in circumstances where the applicant had not been aware of any hearing loss prior to the incident occurring on 26 July 2017 and now suffered a mild hearing loss of 4000Hz on the right, tinnitus could be assessed. Dr Raj reasoned that with head injury, hearing loss is variable in severity and can be unilateral or bilateral. Dr Raj assessed the hearing loss suffered by the applicant at 0% whole person impairment and the tinnitus suffered by the applicant at 3% whole person impairment.
Dr Howison, ENT
Dr Howison provided an independent medical report dated 13 August 2020[25] in which he confirmed he had reviewed the reports of Dr Raj dated 8 July 2020. Dr Howison noted the incident occurring on 26 July 2017 which relevantly resulted in the applicant falling “mostly on his left side”, sustaining a head injury and losing consciousness. He also noted the applicant’s employment history, which included working as a Gyprocker where he was exposed to loud noise but was issued with ear plugs as a form of ear protection. Dr Howison noted the applicant suffered hearing loss and bilateral tinnitus, with the tinnitus having been present since he sustained his head injury on 26 July 2017. Following clinical examination and pure tone audiometry testing that demonstrated slight bilateral high tone sensori-neural hearing loss, Dr Howison said in response to specific questioning that the applicant was only intermittently aware of mild hearing loss and his complaint was that of severe tinnitus. Dr Howison also provided opinion that while the applicant’s mild hearing loss was as a result of exposure to unacceptable noise levels during his employment with the respondent, his bilateral tinnitus was result of the head injury and neck injury he sustained in the incident occurring on 26 July 2017. Relevant to assessment of permanent impairment, like Dr Raj, Dr Howison correctly pointed out tinnitus is only assessable in the presence of hearing loss sustained in the incident occurring on 26 July 2017, which was not the case here.
Submissions
[25] ARD at page 45.
Both counsel made oral submissions which I have considered. I am grateful to counsel for the assistance provided to me in this particular matter. As a copy of the recording is available to the parties I merely note here that the thrust of counsels’ submissions went to the acceptance or otherwise by the Commission as to whether the applicant sustained hearing loss injury in the incident occurring on 26 July 2017.
Determination
Injury
It is accepted by the respondent that the applicant sustained injury to his cervical spine, lumbar spine, left upper extremity and tinnitus in the incident occurring on 26 July 2017 and my fundamental task is to determine whether on the basis of the evidence before the Commission, including that provided by the independent medical examiners, the applicant also sustained injury in the nature of hearing loss in the incident occurring on 26 July 2017.
The applicant has the onus of proving that he has sustained injury in the nature of hearing loss in the incident occurring on 26 July 2017. This is a question of fact in this matter and consideration of his statements and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[26] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712”.
[26] [2008] NSWCA 246 (Nguyen).
In his statement the applicant said that when he regained consciousness after he fell to the ground on 26 July 2017, the left side of his body and face was aching and bruised. He said that when he consulted with Dr Lam on 27 July 2017 he made complaint that included hearing/tinnitus in both ears, but I note such complaint is not reflected in the clinical records of Dr Lam. Complaint of “bilat tinnitus” but not bilateral hearing loss is recorded at that consultation. It appears the first complaint of bilateral hearing loss made by the applicant may have been made to his treating ENT, Dr Kapila. Dr Kapila reported on 5 September 2017 that the applicant “reports that when he woke up he ‘couldn’t hear clearly in both ears’”. Although examination by Dr Kapila on this occasion found both of the applicant’s ears to be “normal”, clinical testing demonstrated possible sensorineural symmetry on right which was further investigated and confirmed. With such sensorineural symmetry being of single frequency and contralateral to the applicant’s fall, Dr Kapila provided opinion the hearing loss was not related to the incident occurring on 26 July 2017. Dr Howison also provided opinion the applicant’s hearing loss was not related to the incident occurring on 26 July 2017.
In his report dated 8 July 2020 Dr Raj described the applicant as suffering discomfort in his left ear, with loud tinnitus initially on the left after the incident occurring on 26 July 2017. Dr Raj described the tinnitus as having now become bilateral and reported the applicant “did not think he had an associated hearing loss …”. Although like Dr Kapila and Dr Howison, Dr Raj found the applicant suffered a mild hearing loss on the right, Dr Raj accepted the applicant had sustained such hearing loss in the incident occurring on 26 July 2017 with explanation the applicant had not been aware of any hearing loss prior to 26 July 2017 and hearing loss associated with head injury is variable in severity and can be unilateral or bilateral.
Although Dr Teychenne recorded in his report dated 2 July 2019 the applicant had noted bilateral tinnitus and hearing loss as a result of the incident on 26 July 2017, Dr Teychenne previously reported on 28 May 2019 that a Brainstem Evoked Response through the right ear was normal a Brainstem Evoked Response through the left ear was absent, which is not consistent with the findings of hearing loss on the right found by Dr Kapila, Dr Howison and Dr Raj. I agree with submission made by Ms Grotte that Dr Teychenne’s reporting is of limited assistance in this matter.
Relevant to the competing medical evidence provided by Dr Kapila and Dr Howison to that of Dr Raj, I am mindful that in Singh v FTW Products Pty Ltd[27] Snell ADP made the following observation:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & Anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148 McColl JA said at [69]:
‘The primary’s judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Misfud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [42] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
[27] [2007] NSWWCCPD 230.
Dr Kapila, Dr Howison and Dr Raj all specialise in ear, nose and throat surgery. While Mr Loukas made submission that at the time of reporting Dr Raj had the opportunity to review the opinion of Dr Kapila, which differed from that of Dr Raj, and Dr Raj expressed compelling reasoning as why the applicant’s hearing loss resulted from the incident occurring on 26 July 2017, I am mindful Dr Howison had the opportunity to review this opinion of Dr Raj and provided opinion with reasoning that differed from that of Dr Raj but agreed with that of Dr Kapila. It is not apparent to me that Dr Raj was provided with Dr Howison’s report for review and comment.
It is evident from the medical evidence before the Commission that the applicant is not concerned about the hearing loss he suffers, which is accepted by Dr Kapila, Dr Howison and Dr Raj to be mild, and I accept Dr Kapila’s opinion and that of Dr Howison that the hearing loss suffered by the applicant did not result from the incident occurring on 26 July 2017. I prefer the opinion of Dr Kapila to that of Dr Raj because Dr Kapila is the applicant’s treating ENT and as such has had the opportunity to review the applicant on a number of occasions during 2017 and 2018 regarding his mild hearing loss and his tinnitus, whereas Dr Raj only had the opportunity to review the applicant on one occasion on 7 July 2020. I also prefer the opinion of Dr Howison to that of Dr Raj because it is not apparent from his reporting that Dr Raj considered the noisy environment in which the applicant worked with the respondent (or elsewhere) when he reached his conclusion as to the cause of the applicant’s hearing loss and I am mindful Dr Howison had the opportunity to review Dr Raj’s opinion before he provided his opinion.
For the reasons discussed above I do not feel an actual persuasion of the existence of a fact required of me by Nguyen and I do not accept the mild hearing loss suffered by the applicant resulted from the incident occurring on 26 July 2017.
Permanent impairment
The applicant made a claim for permanent impairment compensation payable under s 66 of the 1987 Act for 28% whole person impairment resulting from the injuries he sustained to his cervical spine, his lumbar spine, his left upper extremity, and loss of hearing/tinnitus in the incident occurring on 26 July 2017. Liability for the injury the applicant sustained to his cervical spine, lumbar spine, left upper extremity and tinnitus in the incident occurring on 26 July 2017 is not disputed.
As I do not accept the applicant sustained hearing loss in the incident occurring on 26 July 2017 and the parties agree tinnitus cannot be assessed for the purpose of permanent impairment without hearing loss, the applicant’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, lumbar spine and left upper extremity (shoulder, forearm, trigger finger) in the incident occurring on 26 July 2017 is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
While the ARD and attached documents and the Reply and attached documents are to be forwarded to the Medical Assessor for consideration, I do not consider it necessary for the A AALD and attached report of Dr Raj dated 8 July 2020 to be forwarded to the Medical Assessor for consideration as I do not accept the applicant sustained hearing loss in the incident occurring on 26 July 2017 and the parties agree the tinnitus sustained by the applicant in the incident occurring on 26 July 2017 cannot be assessed for the purpose of permanent impairment without hearing loss.
SUMMARY
Liability for the injury the applicant sustained to his cervical spine, lumbar spine, left upper extremity and tinnitus in the incident occurring on 26 July 2017 is not disputed. I do not accept the applicant sustained hearing loss in the incident occurring on 26 July 2017 and the parties agree tinnitus cannot be assessed for the purpose of permanent impairment without hearing loss.
The applicant’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, lumbar spine and left upper extremity (shoulder, forearm, trigger finger) in the incident occurring on 26 July 2017 is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
The following documents are admitted by consent and are to be forwarded to the Medical Assessor:
(a) ARD and attached documents, and
(b) Reply and attached documents.
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