CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Mark Charles Francis The Estate of the Late Mark Hurndell v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 259	
		
APPLICANT:	The Estate of the Late Mark Charles Francis Hurndell	
		
FIRST RESPONDENT:	Allstates Automotive Transmissions Pty Ltd	
		
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)	
		
Member:	Catherine McDonald	
		
DATE OF DECISION:	20 May 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment compensation for hearing loss; worker died between date of claim and commencement of proceedings; threshold in section 66(1); date at which assessment should be made and application of presbycusis tables; assessment of permanent impairment; Etherton v ISS Property Services Pty Ltd referenced; Held – the assessment of permanent impairment does not exceed the threshold; no order.

determinations made:	The Commission determines:
1.	The permanent impairment does not exceed the threshold in s 66 (1) of the Workers Compensation Act 1987.
2.	No order. 

STATEMENT OF REASONS
BACKGROUND
1.	Mark Hurndell suffered noise induced hearing loss in the course of his employment with Allstates Automotive Transmissions Pty Ltd (Allstates). The deemed date of injury is 30 June 2010. 
2.	Mr Hurndell claimed compensation pursuant to ss 60 and 66 of the Workers Compensation Act 1987 (the 1987 Act) on 7 September 2021, supported by reports by Dr Fagan dated 20 April 2021 and 28 July 2021. Dr Fagan assessed Mr Hurndell’s hearing loss and recommended hearing aids.
3.	iCare disputed the claim by a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 27 September 2021, because it was not satisfied that the interim was connected to New South Wales, nor that Allstates did not hold a workers compensation policy as at the deemed date of injury.
4.	iCare nonetheless arranged an examination by Dr Raj who reported on 1 November 2021. It issued another s 78 notice on 18 March 2022, declining the claim on the same basis as before.
5.	iCare issued a notice under s 287A of the 1998 Act on 23 August 2022 accepting liability for the claim because it was satisfied that Mr Hurndell’s employment was connected with New South Wales and that Allstates was uninsured at the deemed date of injury.
6.	On 25 August 2022 iCare issued a third dispute notice disputing the claim because Dr Raj assessed 18.3% binaural hearing loss (BHL), after presbycusis, which converts to 9% whole person impairment (WPI). iCare declined the claim because the degree of permanent impairment was not greater than 10%. Another s 287A notice was issued on 16 March 2023 confirming that decision.
7.	Mr Hurndell died on 19 July 2023 and shortly afterwards, proceedings which had been commenced in the Personal Injury Commission were discontinued.
8.	Proceedings were commenced on behalf of Mr Hurndell’s estate on 22 February 2024. 
9.	iCare filed a Reply including a letter in which it asked for confirmation that Mrs Hurndell has the authority of the estate to act, noting that a grant of probate had not been sought.
10.	The claim was listed for preliminary conference on 4 April 2024 to determine how a medical assessment should proceed.
11.	As a result of the discussions at that conference, I issued a direction in the following form:
“The Commission notes:
1.	The matter in dispute is the extent of noise induced hearing loss suffered by the worker.
2.	The worker died on 19 July 2023 and a medical examination is not necessary.
3.	Any report by a Medical Assessor prepared now would be based on one of the audiograms in the file and would determine which of the frequencies were appropriate to include.
4.	The Medical Assessor would be required to apply a presbycusis deduction. In normal circumstances an audiogram would be conducted and the deduction would be that at the date of the examination.
5.	The applicant’s case, at its highest, is based on the report of Dr Fagan dated 28 July 2021 who examined the worker on 8 April 2021 and conducted an audiogram.
6.	Dr Fagan included the loss at all frequencies in his assessment and applied a loading for tinnitus of 4%. He applied the presbycusis deduction applicable at the date of his examination (3.8%) and assessed 21.5% binaural hearing loss which converts to 11% whole person impairment (WPI).
7.	As at the date of his death, the worker was 70 years old and the presbycusis deduction is 4.9%.
8.	If a presbycusis deduction of 4.9% was made from Dr Fagan’s assessment, the result would be 20.4% binaural hearing loss which converts to 10% WPI for which no compensation is payable.
9.	Dr Raj, who examined the worker on 28 October 2021 at the request of the second respondent, assessed 22.1% binaural hearing loss and deducted 3.8% for presbycusis, resulting in 18.3% binaural hearing loss which converts to 9% WPI (whether or not any deduction in respect of a period of subsequent self-employment is appropriate).
The Commission directs:
10.	The examination by the Medical Assessor on 11 April 2024 should be vacated.
11.	The applicant is to either file an Election to Discontinue or file and serve written submissions as to how the matter should proceed by 18 April 2024.
12.	If necessary, the second respondent is to file and serve written submissions by 26 April 2024.
13.	If the matter is not discontinued, the question as to whether it is referred to a Medical Assessor will be determined on receipt of the submissions.”
12.	The parties filed submissions in accordance with that timetable. The estate also sought to rely on a further report from Dr Fagan described below.
13.	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 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
14.	Mr Hurndell signed a statement on 24 February 2023 setting out his employment history. He said that his hearing had become worse over the years and:
“I also hear a ringing noise in my left ear which is constant. When the tinnitus is present it is annoying, frustrating and irritating. At times the tinnitus makes it very difficult for me to concentrate. This is especially so when I try to read or watch tv. The ringing sound takes the focus away from what I am trying to concentrate on. The tinnitus also affects my ability to fall asleep because the ringing is more noticeable at night when everything is quiet. It can sometimes take me a few hours to fall asleep because the ringing sound simply won't go away.”
15.	In his report dated 20 April 2021, Dr Fagan set out the history that he obtained with respect to Mr Hurndell’s employment. He said that Mr Hurndell had been exposed to occupational noise for 34 years, and he was satisfied that the hearing loss at the frequencies from 1000 Hz to 4000 Hz was caused by occupational noise exposure. He had additional hearing loss in the left ear of uncertain aetiology. Dr Fagan said that the thresholds in the left ear should be equated with those of the right ear for the calculation of noise induced hearing loss.
16.	Dr Fagan recorded that Mr Hurndell had constant tinnitus in both ears, and that sleep induction and concentration on certain daily tasks were often affected by it. He applied a loading at 4% for severe tinnitus.
17.	Dr Fagan assessed 21.3% BHL and made a deduction of 3.8% for presbycusis, resulting in a total of 17.5% binaural hearing loss. He recommended hearing aids. He did not transpose the allowance for tinnitus into his calculation.
18.	In a report dated 28 July 2021, Dr Fagan corrected the calculation to include the loading for tinnitus. He assessed 21.3% BHL, added 4% for tinnitus and deducted 3.8% for presbycusis. He said that the compensable hearing loss was 21.5% which converts to 11% WPI.
19.	Dr Raj reported on 1 November 2021. He obtained a history that Mr Hurndell suffered tinnitus only on the left side and that he suffered worsening hearing on that side. Dr Raj said that industrial deafness does not cause unilateral tinnitus and that the worsening hearing was not due to industrial deafness. He therefore did not make an allowance for tinnitus.
20.	Dr Raj said that the audiogram showed asymmetry worse in the left ear consistent with recent deterioration. He considered that the deterioration was due to constitutional factors. He said the profile of the audiogram is not consistent with industrial deafness, because of severe loss in the left ear, the severe loss at 1500 Hz and the conductive deafness in both ears. For those reasons, Dr Raj determined to assess the loss of 2000 to 4000 Hz as being due to industrial deafness.
21.	Based on his audiogram, Dr Raj said that Mr Hurndell had total BHL of 65.4% and occupational BHL of 22.1% from which he deducted 3.8% for presbycusis, resulting in an assessment of 18.3% BHL. He purported to make a deduction under s 323 of the 1998 Act in respect of noise exposure in New Zealand. Whether or not that deduction is made, the BHL assessed by Dr Raj converts to 9% WPI.
SUBMISSIONS
The estate
22.	Submissions were filed in accordance with the orders made. However, without notice, Mr Hurndell’s estate sought a further report from Dr Fagan dated 16 April 2024 which was attached to the submissions. Dr Fagan was provided with a copy of the direction dated 4 April 2024 and asked to prepare a report as to whether the presbycusis deduction applies at the date of Mr Hurndells’ death or the “date of assessment in 2021.”
23.	An Application to Admit Late Documents dated 17 April 2024 attaching the evidence contained the following reasons purporting to support its admission:
“On 4 April 2024 Member McDonald issued a Direction. In response, the Applicant obtained a medical opinion from Dr. Fagan on the issues raised. The report of Dr. Fagan deals with the issues in dispute and provides a relevant medical opinion. The other documents are enclosures referred to in Dr. Fagan's report. It would be in the interests of justice to allow the documents into evidence. It would be prejudicial to the Applicant to disallow them.”
24.	Dr Fagan said that the presbycusis correction is integral to the audiological examination and calculated as at the test dat. He referred to a computer program used for calculating percentage loss and said that the correction for presbyacusis is not a “separate activity”. He relied on a form of hearing loss assessment report which he said demonstrates that the correction for age is integral to the calculation.
25.	Dr Fagan said that using the presbyacusis deduction for a date other than the audiogram date would require an adjustment to the total hearing loss to account for expected additional degenerative loss. He quoted from the National Acoustic Laboratories Report No.118 January 1988 Improved Procedure for Determining Percentage Loss of Hearing (NAL Report No 118) to support the contention that applying the presbycusis deduction at the date of death would lead to an unsatisfactory result. Dr Fagan said that the following content under the heading Revision of Presbyacusis Correction Table was relevant:
"For example, consider the case of a man who retired from employment at the age of 60 years and who claimed at the age of 70 years that he had a hearing loss due to his employment but that he was ignorant of his right to claim compensation at the time of retirement. The hearing loss of this man would most probably have deteriorated as a result of aging in the 10 years from retirement to the time of making his claim. According to the presbycusis table given in appendix 5, his age related P.L.H. (percentage loss of hearing) at age 60 years would be expected to be 0.8% whereas at age 70 years it would be 4.9%, an increase of 4.1%."
26.	Dr Fagan said that it was appropriate to apply the age correction “applicable as of the audiogram assessment date, as the authors of the 1998 NAL Tables intended.” Dr Fagan said that he had “never seen another E.N.T. specialist apply the presbycusis correction as suggested by the Member in the document titled 'Direction’”.
27.	The submissions prepared on behalf of the estate said that Dr Raj “confirmed” there had been a deterioration in the worker’s hearing since the assessment by Dr Fagan, quoting Dr Raj’s statement that: 
“My audiogram is slightly worse since the recent deterioration, but the bone conduction readings are about the same.”
28.	The estate submitted that it would be expected that there would be even further deterioration in an audiogram two years later.
29.	The estate said that a Medical Assessor should be provided with the file containing the assessments of Dr Fagan and Dr Raj and asked “to decide which audiogram he prefers.”
Allstates
30.	Allstates submitted that the presbyacusis deduction should be applied at the date of Mr Hurndell’s death at which time, even on Dr Fagan’s audiogram, the assessment would be below the s 66 threshold. 
31.	Allstates submitted that Dr Fagan’s 2024 report was speculative, of no real forensic value and should not be afforded any weight if admitted into evidence. Allstates said that his approach was either to use an out of date audiogram with no additional deduction for presbycusis or to increase the loss to account for expected deterioration in Mr Hurndell’s last two years. Allstates noted that Dr Fagan omitted the sentence immediately preceding that which he quoted from NAL Report No 118, which reads:
“Even when it is not required that a correction for presbycusis be carried out, there are sometimes circumstances in which it would be appropriate to carry out an adjustment for the effects of ageing.”
32.	The omission of that sentence, Allstates submitted, led to the material being relied on by Dr Fagan being taken out of context. Allstates said that the comments made by Dr Fagan with respect to the direction were contrary to the obligations of an expert witness in the Personal Injury Commission referring to paragraphs 8 and 9 of Procedural Direction PIC4 – Expert Witness Evidence. I note those paragraphs read:
“8. 	An expert witness has an overriding duty to assist the Commission impartially on the real issues in dispute relevant to the expert’s area of expertise.
9. 	An expert witness’s paramount duty is to the Commission. An expert witness is not an advocate for a party or the person retaining them.
33.	Allstates said that there was no medical dispute pursuant to s 319 of the 1998 Act which was capable of being referred to a Medical Assessor.
Consideration
34.	Because Mr Hurndell has died, any assessment of permanent impairment needs to be made in a practical way, noting the objective in s 3(c) of the Personal Injury Commission Act 2020 that the real issues in the proceedings be resolved “justly, quickly, cost effectively and with as little formality as possible.”
35.	Though there is a medical dispute, the repeal of the former s 65(3) of the 1987 Act in 2019 means that in appropriate cases, a member of the Personal Injury Commission can make an assessment of permanent impairment – see Etherton v ISS Property Services Pty Limited.
36.	Mr Hurndell’s hearing loss will only result in an assessment of WPI which exceeds the threshold in s 66(1) if all aspects of Dr Fagan’s assessment are accepted and the presbycusis deduction relevant at the date of his examination in 2021 applied. Because Mr Hurndell is not able to undergo an audiogram, any assessment would be made on the basis of one of two audiograms in the file. If a Medical Assessor did not agree that all frequencies should be included in the assessment or allowed a lower loading for tinnitus or assessed presbycusis as at the date of Mr Hurndell’s death, the assessment will fall below the s 66 threshold and should not be referred to a Medical Assessor.
37.	As numerous Medical Appeal Panel decisions have pointed out, hearing loss at the lower frequencies can form part of the assessment when a worker has been employed in very noisy employment for the duration of their working life. An example often cited is Shone v Country Energy. Dr Fagan included the loss at all frequencies in his assessment and Dr Raj explained why he did not.
38.	When the estate’s submissions about an increased loss of hearing between the date of Dr Fagan’s report and Dr Raj’s report are considered carefully, it is clear that Dr Raj’s comments have been taken out of context. Dr Raj examined Mr Hurndell only six months after Dr Fagan.
39.	Mr Hurndell said in his statement that his hearing had generally worsened over time. However, contrary to the estate’s submissions, Dr Raj did not record that Mr Hurndell’s hearing was generally worsening but that his hearing on the left side had deteriorated recently and that he suffered the recent onset of tinnitus on that side only. Dr Raj said that the audiogram results showed asymmetry worse in the left ear “consistent with recent deterioration”. He said that the audiogram was slightly worse “since the recent deterioration” but noted the bone conduction readings were about the same. Dr Raj said that the recent loss was constitutional.
40.	Dr Raj’s history is consistent with Mr Hurndell’s own statement prepared on 24 February 2023 in which he clearly localised the tinnitus he was suffering was confined to his left ear.
41.	In order to properly deal with the issues in the claim, it is appropriate that I admit Dr Fagan’s report dated 16 April 2024 into evidence. I accept Allstates submission that the report carries little weight for the reasons set out below.
42.	The NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) provide that the binaural tables in NAL Report No 118 are to be used to assess hearing loss with allowance for presbycusis according to the table in that publication. Table 9.1 sets out the relationship of BHL to WPI.
43.	Allstates is correct to observe that Dr Fagan has taken the passage quoted from NAL Report No 118 out of context by omitting the first sentence of the paragraph. It is relevant to quote the paragraph in full because the last sentence, omitted by Dr Fagan and by Allstates, is also relevant. The full paragraph reads:
“Even when it is not required that a correction for presbycusis be carried out, there are sometimes circumstances in which it would be appropriate to carry out an adjustment for the effects of ageing. For example, consider the case of a man who retired from employment at the age of 60 years and who claimed at the age of 70 years that he had a hearing loss due to his employment but that he was ignorant of his right to claim compensation at the time of retirement. The hearing loss of this man would most probably have deteriorated as a result of aging in the 10 years from retirement to the time of making his claim. According to the presbycusis table given in Appendix 5, his age related PLH at age 60 years would be expected to be 0.8% whereas at age 70 years it would be 4.9%, an increase of 4.1%. In these circumstances, it would seem reasonable to attribute 4.1% of his binaural PLH to ageing.”
44.	A consideration of the complete paragraph shows that it does not support Dr Fagan’s opinion. The final sentence highlights that, when there is delay in making a claim, the additional loss due to ageing is deducted by using the presbycusis tables. If the overall loss was increased as Dr Fagan suggested, the intent of the presbycusis tables would be lost. The effect of the tables is to preclude the payment of compensation for the non-work related loss due to aging. Dr Fagan did not explain the method by which the hearing loss could be increased and it is difficult to see how it could be, when the assessment of hearing loss is individual to each worker.
45.	There are many reasons why the making and determination of a claim may be delayed. Here there was a delay in the provision of information to confirm that Allstates was uninsured and that Mr Hurndell’s employment was connected with New South Wales. There is nothing in the evidence to show why proceedings were not commenced on receipt of the s 287A notice in August 2022. If they had been, Mr Hurndell would have been referred to a Medical Assessor who would have assessed hearing loss and made the appropriate presbycusis deduction for a man aged 69. If the examination had taken place before January 2023, that deduction would have been 4.4% rather than the 3.8% at the time of Dr Fagan’s examination. If the hearing loss was identical to that assessed by Dr Fagan, the loss at all frequencies included and the same allowance made for tinnitus, Mr Hurndell would have been assessed with 20.9% hearing loss or 11% WPI. If, for whatever reason, the examination had not taken place until after Mr Hurndell’s birthday in January, the appropriate presbycusis deduction was 4.9% and on the best case, the binaural hearing loss is 20.4%, converting to 10% WPI.
46.	Taking the purpose of the presbycusis tables into account, the appropriate date at which to assess presbycusis is the date of Mr Hurndell’s death, that being the last date at which an assessment would be possible. Even adopting Dr Fagan’s assessment, the presbycusis deduction results in an assessment under the threshold for the payment of compensation.
47.	The claim made by the estate is under the threshold in s 66(1) of the 1987 Act and it is not appropriate to refer it to a Medical Assessor.

Conclusion
48.	The permanent impairment does not exceed the threshold in s 66 (1) of the 1987 Act.
49.	I make no order.