Zifovich v GPC Asia Pacific Pty Ltd

[2024] NSWPICMP 619

DETERMINATION OF APPEAL PANEL
CITATION:	Zifovich v GPC Asia Pacific Pty Ltd [2024] NSWPICMP 619
APPELLANT:	Robert Zifovich
RESPONDENT:	GPC Asia Pacific Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Brian Williams
MEDICAL ASSESSOR:	Robert Payten
DATE OF DECISION:	3 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Hearing loss due to occupational noise exposure; worker appealed on basis of the failure to include all losses at all frequencies; appellant’s history of noise exposure in noisy workshops from 1973 to 2021; appellant worked eight hours a day, five to seven days per week with the respondent from 1977 to 2021; prolonged loud noise exposure and the appearance of the audiogram (the decibel hearing levels are progressively worse from 500 Hz to 4000 Hz, consistent with the prolonged nature and duration of occupational noise exposure in this matter); the Appeal Panel was satisfied, on the balance of probabilities, that the calculation of occupational noise induced hearing loss should be made from all of the frequencies from 500 Hz to 4000Hz inclusive; Held – not open to the Medical Assessor (MA) on the evidence to exclude the hearing losses below 2000 Hz as non-work-related and the MA erred in so doing; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 2 May 2024 the worker Mr Robert Zifovich (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Henley C Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 April 2024.

2. 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.

3. 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.

4. 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.

5. 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

1. 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.

2. The appellant did not seek 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 although the Appeal Panel found error, there was sufficient material before the Appeal panel to enable a determination to be made.

EVIDENCE

Documentary evidence

1. 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

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. 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:   20 September 2021

   ·    Body parts/systems referred:         Hearing Loss

   ·    Method of assessment:                  Whole Person Impairment”

4. The Medical Assessor issued a MAC as follows:

Injurydeemed to have happenedon:	Frequency Hz	Left Air	dB HL Bone		Right dB          HL Air          Bone			Total % BHI	Occupational % BHI
20 September 2021(deemed)	500	30	25	2.8	30	25	2.8	2.8	0
1000	35	30	5.7	35	30	5.7	5.7	0
1500	40	35	6.4	45	35	8.1	6.8	0
2000	55	45	8.4	55	45	8.4	8.4	8.4
3000	55	50	5.6	65	55	7.0	5.7	5.7
4000	70	55	7.5	70	60	7.5	7.5	7.5
36.4			39.5			21.6
TOTAL%BHI:36.9
Less Pre-existing non-related loss: 15.3
LessPresbycusiscorrection:3.3
Add%ofseveretinnitus:0
Adjustedtotal%BHI:18.3
Resultant total BHI of 18.3 % = 9 % whole person impairment (Table 9.1)

1. The worker appealed.

2. 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 that he erred in attributing all hearing loss below 2000Hz to non-occupational hearing loss in the context of a history of 48 years of occupational noise exposure.

3. In summary, the respondent employer GPC Asia Pacific Pty Ltd (the respondent) submitted there is no error and no assessment on the basis of incorrect criteria and the final assessment of 9% WPI should be confirmed.

4. The Medical Assessor took a history as follows:

   “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: During his time with the respondent and with previous employers the worker was exposed to loud noise with the potential to damage hearing. He has had difficulty hearing for about 20 years. Treatment has consisted of the wearing of hearing aids.

   Present treatment: He has worn hearing aids for about 3 years; they help.

   Present symptoms: He has difficulty hearing and understanding people including family, friends and other persons and has to ask them to repeat themselves. The ears appear about equally affected. He needs the television turned up at home about which his family complains. The hearing is worse in group conversations and background noise. He has no other ear symptoms and in particular no tinnitus or balance problems.

   Details of any previous or subsequent accidents, injuries or condition: Other than previous occupational noise exposure in NSW, there are none.

   General health: He has coronary artery disease and had stents inserted last year and takes anticoagulants because of this. He also has an anxiety disorder for which he takes medication as well as having had a knee replacement last year. However none of these factors would be likely to significantly affect hearing so there is nothing relevant to the claim. In particular there is no history of previous ear disease, no history of familial deafness, none suggestive of exposure to ototoxic (hearing-damaging) medication and none of significant head injury.

   Work history including previous work history if relevant: I went over the worker's statement with him and largely confirmed and partly clarified it. He has always worked ordering spare parts for motor vehicles (this is what a spare parts interpreter does, he explained to me). This was his role with the respondent for which he worked from 1977 until September 2021 (his work in Western Australia for 15 months was actually for the respondent). This involved him in going into noisy workplaces where he was exposed to the noise of motor vehicle engines, hoists, exhausts, hammering, power tools and other noisy machinery as well as a very noisy roller door which he would activate at least twice a day. He said that the noise was such that in its presence he would have to raise his voice or sometimes shout for someone with normal hearing to understand him at a distance of 1 metre which suggests that the noise had the potential to damage hearing in 8 hours or less. Hearing protection was not worn. He worked 8 hours a day, 5 to 7 days a week with the respondent. He said that he was often flown to external worksites on noisy aircraft such as Boeing 707’s and even DC3’s both of which I know from my own experience are, or were, very noisy.

   Prior to working for the respondent from 1975 until 1976 he worked for Volkswagen with similar noise exposure and from the end of 1973 until 1975 doing the same work for Byrt Ford.

   He has not worked since leaving the respondent.

   Social activities/ADL: Apart from the effects of the hearing loss as described under ‘present symptoms’ on activities of daily living, the worker avoids noisy or crowded places because of increased difficulty understanding speech in such circumstances.

   The worker has done no military service and has no noisy pastimes.”

5. The Medical Assessor recorded his findings on physical examination as follows:

   “Due to the current Covid-19 pandemic the examination was restricted to the essentials – examination of the ears and assessment of the ability to understand me.

   On examination, the ears were normal.

   I was able to converse satisfactorily with the worker with a slightly raised speaking voice at a distance of about two metres both with him wearing his hearing aids and without him doing so.”

6. An audiogram was conducted on the day of examination and the Medical Assessor noted as follows:

   “Audiometry was performed on the day of assessment in a quiet environment in a suitable sound proofed booth using a calibrated audiometer. The audiogram was performed by my audiologist, Ms Jane Collingwood a qualified audiologist whose qualifications are BA, MClinAud, MAudSA (CC) Clinical Audiologist. Prior to the audiogram being performed, I ascertained that the worker had not been exposed to loud noise in the last 16 hours. The audiogram showed a bilateral, almost equal sensorineural deafness affecting all frequencies. The total binaural hearing impairment (BHI) derived from this audiogram is 36.9%. A copy of the audiogram accompanies this report. However not all of this deafness is occupational deafness (‘industrial deafness’).”

7. The Medical Assessor summarised the injury and his diagnosis as follows:

   “(a)    summary of injuries and diagnoses:

   Bilateral sensori-neural deafness partly due to occupational deafness and partly due to unknown cause or causes probably at least partly constitutional.

   (b)     consistency of presentation

   The history and examination are consistent with a diagnosis of industrial deafness but the audiogram is not consistent with all of the deafness being industrial deafness (an accurate audiogram was easily obtained).”

8. 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:

The date of injury is after 1 January 2002 so the 1988 NAL Tables and the WorkCover Guides Fourth Edition – reissued 1 March 2021 have been used to calculate percentages of hearing loss and binaural hearing impairment (BHI) and to derive Whole Person Impairment (WPI).

The worker’s employment with the Respondent has been determined to have the tendencies, incidents and characteristics such as to pose a real risk of damaging hearing. I am in agreement with this.

The history is of significant occupational noise exposure. Please also see below.

REASONS FOR ASSESSMENT

a.   My opinion and assessment of whole person impairment Please see 9, above.

There is 9% WPI.

In making that assessment I have taken account of the following matters:-

(List examination findings, investigation findings and matters of history that have determined the assessment).

As stated above the history and examination are consistent with a diagnosis of occupational noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because in an audiogram of established occupational deafness, the hearing loss slopes downward with a curve convex upwards from left to right except for some possible preservation of the highest frequencies i.e. above 4000 cycles per second (as demonstrated in the accompanying figure from the book ‘Medical-Legal Evaluation of Hearing Loss’ by Dr Robert Dobie – NIPTS means: ‘noise–induced permanent threshold shift” which is industrial deafness). Except in cases of extremely long and severe noise exposure the lowest frequencies are preserved. The worker’s audiogram does not have these characteristics. Hence it is not suggestive of industrial deafness. He has however been subject to what sounds like fairly significant noise exposure and I believe, on the balance of probability, he/she has suffered some hearing loss due to it. So, like Dr Howison, I have apportioned the industrial deafness to the frequencies 2000 cps and above because industrial deafness does not usually affect the frequencies below these.

This apportionment gives 21.6% BHI before mandatory deduction for presbycusis and 18.3% BHI after such deduction. He has no tinnitus so no allowance for severe tinnitus is appropriated. The foregoing give a Resultant total BHI of 18.3% which equals 9% WPI.”

1. The Medical Assessor made brief comment on the other medical opinions before him as follows:

   “Dr McSwiney found an element of conductive deafness on the left and made a correction for this but then accepted all frequencies as being affected by occupational noise exposure despite his corrected figures having similar characteristics to mine. I have given my reasons for my differing opinion in this regard.

   Dr Howison made a deduction for the worker’s time in Western Australia. I have explained above why I do not consider this to be appropriate.”

2. The Medical Assessor explained the deduction for non-noise related hearing loss 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) Non-related hearing loss

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)15.3% BHI of non-related loss

c.     In my opinion the deductible proportion is 15.3% BHI for the following reasons:

(i)Because that is the extent of the non-related loss.”

1. The appellant submitted on appeal that the Medical Assessor failed to provide sufficient reasoning for his opinion that hearing loss at the frequencies below 2000 Hz have not been affected by occupational noise exposure over 48 years of what the Medical Assessor himself describes as significant noise exposure.

2. The decision to include losses at lower frequencies in the assessment is a matter for clinical judgment of the Medical Assessor based on the nature and duration of occupational noise exposure and the nature and extent of the hearing losses on a valid audiogram including the extent of hearing losses in the lower frequencies compared to the extent of the hearing losses in the higher frequencies. However the Medical Assessor is nevertheless required to provide the path of reasoning for exercising this judgment. The MAC must be read as a whole. However in this matter the MAC must display an adequate path of reasoning for the exclusion of losses below 2000Hz in the context of a history of 48 years of occupational  noise exposure.

3. The Medical Assessor stated that audiogram taken on the day of assessment shows losses below 2000Hz which are not consistent with occupational noise exposure. He stated:

   “As stated above the history and examination are consistent with a diagnosis of occupational noise exposure but the audiogram is not consistent with this being the sole diagnosis. This is because in an audiogram of established occupational deafness, the hearing loss slopes downward with a curve convex upwards from left to right except for some possible preservation of the highest frequencies i.e. above 4000 cycles per second (as demonstrated in the accompanying figure from the book ‘Medical-Legal Evaluation of Hearing Loss’ by Dr Robert Dobie – NIPTS means: ‘noise–induced permanent threshold shift’ which is industrial deafness). Except in cases of extremely long and severe noise exposure the lowest frequencies are preserved. The worker’s audiogram does not have these characteristics. Hence it is not suggestive of industrial deafness. He has however been subject to what sounds like fairly significant noise exposure and I believe, on the balance of probability, he/she has suffered some hearing loss due to it. So, like Dr Howison, I have apportioned the industrial deafness to the frequencies 2000 cps and above because industrial deafness does not usually affect the frequencies below these.”

4. However in this matter it is not correct to state that industrial deafness does not usually affect the frequencies below 2000 Hz and use that statement to justify the exclusion of the lower frequencies. Each case must be judged on its own evidence and the use of clinical expertise applied to the particular history and the audiological findings in each individual case. 

5. The Medical Assessor was incorrect when he stated that the appellant audiogram does not have the requisite characteristics to include the lower frequencies because “Except in cases of extremely long and severe noise exposure the lowest frequencies are preserved. The worker’s audiogram does not have these characteristics. Hence it is not suggestive of industrial deafness. He has however been subject to what sounds like fairly significant noise exposure”.  The Appeal Panel notes that the document included by the Medical Assessor “Medical-Legal Evaluation of Hearing Loss” by Dr Robert Dobie – NIPTS means: ‘noise–induced permanent threshold shift’ which is industrial deafness)” does show occupational hearing losses below 2000 Hz after occupational noise exposure of 25-29 years and 35-39 years. However in this matter the worker’s history of occupational noise has a duration of 48 years which is not included in the document “Medical-Legal Evaluation of Hearing Loss” by
   Dr Robert Dobie relied on by the Medical Assessor. The Appeal Panel is satisfied, on the balance of probabilities, the hearing losses below 2000 Hz are work related after considering the nature and duration of occupational noise exposure and the nature and extent of all his hearing losses (the profile of the audiogram showing progression of the decibel levels and the decibel levels at the higher frequencies).

6. The Medical Assessor stated that:

   “The audiogram showed a bilateral, almost equal sensorineural deafness affecting all frequencies. The total binaural hearing impairment (BHI) derived from this audiogram is 36.9%. A copy of the audiogram accompanies this report.”

1. However, as per the audiogram conducted on the day of examination, the decibel levels in fact become progressively worse at the higher frequencies bilaterally as follows:

Frequency Hz	Left Air	dB HL Bone		Right dB          HL Air          Bone			Total % BHI
500	30	25	2.8	30	25	2.8	2.8
1000	35	30	5.7	35	30	5.7	5.7
1500	40	35	6.4	45	35	8.1	6.8
2000	55	45	8.4	55	45	8.4	8.4
3000	55	50	5.6	65	55	7.0	5.7
4000	70	55	7.5	70	60	7.5	7.5

1. As can be seen in the table above (which are the findings of the audiogram conducted on the day of examination), the decibel hearing levels are progressively worse from 500 Hz to 4000 Hz, consistent with the prolonged nature and duration of occupational noise exposure in this matter.

2. Accordingly, the Appeal Panel finds, on the balance of probabilities, for the reasons given above it was not open to the Medical Assessor on the evidence to exclude the hearing losses below 2000 Hz as non-work-related and the Medical Assessor erred in so doing. The Medical Appeal Panel noted the appellant’s history given to the Medical Assessor of noise exposure in noisy workshops from 1973 to 2021 and that he worked eight hours a day, five to seven days per week with the respondent from 1977 to 2021. Given this history of prolonged loud noise exposure and the appearance of the audiogram the Appeal Panel is satisfied, on the balance of probabilities, that the calculation of occupational noise induced hearing loss should be made from all of the frequencies from 500 Hz to 4000Hz inclusive.

3. This means that the MAC will be revoked and a new MAC issued including the losses at all frequencies 500-4000 Hz inclusive as follows:

Injurydeemed to have happenedon:	Frequency Hz	Left Air	dB HL Bone		Right dB          HL Air          Bone			Total % BHI	Occupational % BHI
20 September 2021 (deemed)	500	30	25	2.8	30	25	2.8	2.8	2.8
1000	35	30	5.7	35	30	5.7	5.7	5.7
1500	40	35	6.4	45	35	8.1	6.8	6.8
2000	55	45	8.4	55	45	8.4	8.4	8.4
3000	55	50	5.6	65	55	7.0	5.7	5.7
4000	70	55	7.5	70	60	7.5	7.5	7.5
36.4			39.5			36..9
TOTAL%BHI:36.9
Less Pre-existing non-related loss: 0.0
LessPresbyacusiscorrection:3.3
Add%ofseveretinnitus:0
Adjustedtotal%BHI: 33.6
Resultant total BHI of 33.6 % = 17 % whole person impairment (Table 9.1)

1. For these reasons, the Appeal Panel has determined that the MAC issued on 4 April 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:	W543/24
Applicant:	Robert Zifovich
Respondent:	GPC Asia Pacific 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 Henley C Harrison 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:-

Injurydeemed to have happenedon:	Frequency Hz	Left Air	dB HL Bone		Right dB          HL Air          Bone			Total % BHI	Occupational % BHI
20 September 2021(deemed)	500	30	25	2.8	30	25	2.8	2.8	2.8
1000	35	30	5.7	35	30	5.7	5.7	5.7
1500	40	35	6.4	45	35	8.1	6.8	6.8
2000	55	45	8.4	55	45	8.4	8.4	8.4
3000	55	50	5.6	65	55	7.0	5.7	5.7
4000	70	55	7.5	70	60	7.5	7.5	7.5
36.4			39.5			36..9
TOTAL%BHI:36.9
Less Pre-existing non-related loss: 0.0
LessPresbycusiscorrection:3.3
Add%ofseveretinnitus:0
Adjustedtotal%BHI: 33.6
Resultant total BHI of 33.6 % = 17 % 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.