DETERMINATION OF APPEAL PANEL	
	
CITATION:	Harris v Australian Health & Nutrition Association Ltd [2024] NSWPICMP 335	
		
APPELLANT:	Ronald James Harris	
		
RESPONDENT:	Australian Health & Nutrition Association Ltd	
		
Appeal Panel		
		
PRINCIPAL MEMBER:	John Harris	
		
MEDICAL ASSESSOR:	Robert Payten	
		
MEDICAL ASSESSOR:	Brian Williams	
		
DATE OF DECISION:	27 May 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - The appellant suffered industrial deafness; grounds of appeal related to whether the Medical Assessor (MA) erred in not assessing loss of hearing for occupational industrial deafness at and below 2000Hz; finding of fact by MA that noisy employment was for a period of 21 years was unchallenged; audiogram undertaken by MA unchallenged; appellant submitted configuration and length of exposure consistent with examples in the Guidelines for including lower frequencies and otherwise relied on report of Dr Fagan; appellant misstated factual finding by MA as to length of exposure; audiogram inconsistent with examples and Dr Fagan’s assessment; audiogram for levels at 2000Hz were not sufficiently different from 3000Hz and inconsistent with occupational noise exposure; Held – Medical Assessment Certificate confirmed.  

   	

BACKGROUND 
1.	Mr Ronald Harris (the appellant) sustained industrial deafness deemed to have occurred on 11 August 2023 in the course of her employment with Australian Health & Nutrition Association Ltd (the respondent). 
2.	Mr Harris served a claim based on two reports from Dr Fagan seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Fagan assessed the loss of hearing at 14% whole person impairment (WPI). This assessment included losses at the lower frequencies of 1000, 1500 and 2000 Hz.
3.	By letter dated 16 November 2023 the respondent disputed the extent of impairment based upon the report of Dr Raj dated 27 October 2023. The respondent did not raise any liability issues. Dr Raj excluded the hearing losses at frequencies below 3000 Hz.
4.	Mr Harris commenced proceedings in the Personal Injury Commission (the Commission) as a medical dispute had arisen following the exchange of relevant correspondence. As there were no liability issues, the assessment of WPI was referred by the President to a Medical Assessor. The medical dispute was assessed by Medical Assessor Harrison who issued a Medical Assessment Certificate dated 27 February 2024 (MAC).
5.	The assessment of WPI is undertaken in accordance with the fourth edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines). The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail. 
MEDICAL ASSESSMENT 
6.	The Medical Assessor noted the appellant was born in 1966. The work history associated with noise exposure included:
•	a period of two and a half years as a process worker prior to 2000, and
•	employment with the respondent since 2005.
7.	The Medical Assessor concluded that the total binaural hearing loss was 47.0%, partly due to occupational deafness and partly due to another unknown cause or causes probably at least constitutional. 
8.	The reasons provided by the Medical Assessor relating to the causes of the hearing loss were:
“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 noise induced occupational hearing loss the lower frequencies are usually preserved and the hearing loss in the effected frequencies increases in severity with increase in frequency until at least 3000 cps. In this case the hearing loss at 2000 cps is almost the same as at 3000 cps (5 dB is an insignificant difference) so the profile of the audiogram below 3000 cps is not consistent with that diagnosis. I have therefore apportioned the occupational hearing loss to the frequencies 3000 cps and above in which the profile of the audiogram is consistent with being due to occupational noise exposure. This apportionment gives 13.1% BHI before mandatory deduction for presbycusis and 12.7% after such mandatory deduction. The worker's tinnitus is severe and I have made an allowance of 2.0% that. The foregoing give a resultant total BHI of 14.7% which equals 8% WPI.”
9.	The Medical Assessor provided comments concerning the differences between his conclusion and that provided by Dr Fagan and Dr Raj. The Medical Assessor stated:
“Professor Fagan apportioned the occupational hearing loss to the frequencies 1000 cps and above without giving any particular reason for doing so. I have given my reasons for my differing apportionment in this regard. The excessive involvement of the lower frequencies, including on his audiogram are strongly against his frequency apportionment being correct. He also said that he had obtained a history of 38 years of occupational noise exposure which differs from the history which I obtained from carefully questioning the worker and from his statement. 
Dr Raj obtained an occupational history of shorter occupational noise exposure than did I. However this has probably not made a great difference to the overall WPI. I could not quite see how he obtained his total BHI and could not understand the reasoning behind his 10% section 323 (2) deduction.”
APPLICATION TO APPEAL MEDICAL ASSESSMENT 
10.	On 7 March 2024 Mr Harris lodged an Application to Appeal Against the Decision of a Medical Assessor. 
11.	The appellant relied on the grounds of appeal under s 327(3) of the 1998 Act that the assessment was made on the basis of incorrect criteria, and the MAC contained a demonstrable error. 
12.	On 25 March 2024 the respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
13.	The delegate of the President was satisfied that a ground of appeal has been made out. 
14.	We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton Basten JA stated:
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
15.	Burton was applied in Scone Race Club Ltd v Cottom when the Court of Appeal noted that an Appeal Panel was not permitted to look for errors which were not part of the grounds of appeal on which the appeal was made.
EVIDENCE
16.	The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment. 
SUBMISSIONS
Appellant’s submissions
17.	The appellant noted that:
•	the appeal was filed within time;
•	did not seek to be re-examined;
•	did not seek a hearing before the Appeal Panel, and
•	that the appeal can be determined on the papers.
18.	The appellant grounds of appeal were stated as:
(a)	failing to include the loss at the lower frequencies; 
(b)	failure to give adequate reasons for his decision to exclude the loss at lower frequencies, and 
(c)	failure to properly consider Dr Fagan’s opinion/assessment regarding the use of lower frequencies as per his medical reports dated 9 March 2023 and 26 June 2023.
19.	The appellant’s submissions addressed grounds (a) and (b) together. He noted that the Medical Assessor incorrectly referred to the deemed date of injury which should, be 11 August 2023. We note that an amended certificate was issued on 27 February 2024 to correct that obvious error. 
20.	The appellant noted the Medical Assessor obtained a history of at least 31 years to significant noise exceeding 90 dB. After referring to the findings of the Medical Assessor, the appellant submitted:
“The Appellant contends that the MA made a demonstrable error by failing to include the losses at the lower frequencies of 1500Hz and 2000Hz. The MA’s audiogram at these frequencies down slopes, consistent with a noise induced hearing loss pattern, ie it is less at 1500 and 2000Hz, than at 3000 and 4000Hz which are greater. The table at page 6 of the MAC would indicate a loss of 8.4% at each 1500Hz and 2000 Hz. This would increase the assessment from 13.1% BHL to 29.9% BHL, which is over the threshold for lump sum compensation.”
21.	The appellant submitted that the Medical Assessor “erred in stating that the audiogram, below 3000 Hz is not consistent with a diagnosis of occupational noise exposure.”
22.	In relation to the third ground of appeal, the appellant noted that Dr Fagan was satisfied that the some of the lower frequencies below 2000 Hz had been affected by occupational noise exposure. 
23.	The appellant referred to the findings of the Medical Assessor when he stated that “Professor Fagan apportioned the occupational hearing loss to the frequencies 1000 cps and above without giving any particular reason for doing so”. He submitted that this was an error as Professor Fagan provided comprehensive reasons including reliance on the Guidelines.
24.	The appellant submitted that the Appeal Panel should include the lower frequencies at 1500 Hz and 2000 Hz on the Medical Assessor’s audiogram or alternatively accept Dr Fagan’s audiogram. 
Respondent’s submissions
25.	The respondent referred to the decision of Hoeben J in Merza v Registrar of the Workers Compensation Commission and the observations of the Court of Appeal in Pistonis v Registrar of the Workers Compensation Commission as to the meaning of demonstrable error. 
26.	It submitted that the appellant had not satisfied an arguable case of error on the face of the MAC.
27.	The respondent conceded that in noted that each case was determined on its own facts referring to Shone v Country Energy and Collings v Electrolux Home Products Pty Ltd. 
28.	The respondent noted the reasoning in the MAC and submitted there was a detailed review of the medical evidence, and examination of the worker and “having the benefit of the audiogram” the Medical Assessor applied that part of the occupational deafness and the other part due to an unknown and likely constitutional course. It submitted that it was “open to the MA to find that the audiogram below 3000 cps is not consistent with the diagnosis of industrial deafness and accordingly made an appropriate apportionment of whole person impairment.”
29.	The respondent referred to the decision of Manusu v Speed Flow Products Pty Ltd as an “analogous factual matrix” for the appeal panel concluded that the frequencies below 2000 Hz was suggestive of non-occupational hearing loss.
30.	The respondent noted that it was evident from a plain reading of the MAC that the Medical Assessor considered all relevant materials including reports of Dr Fagan. It submitted that it was open to the Medical Assessor to reject the opinion of Dr Fagan based on his assessment of the history provided during the examination as well as the findings of his own audiogram.
REASONS 
Demonstrable error
31.	The Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd. In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.
32.	Before discussing the grounds of appeal, it is necessary to reject the appellant’s misstatement of a factual findings made by the Medical Assessor. The Medical Assessor did not find that the appellant was exposed to “intense exposure to loud noise of at least 90dB for a period of at least 31 years”. The Medical Assessor states he clarified the worker’s occupational noise history in the worker’s statement rather than confirming it as the appellant submits. 
33.	The factual findings made by the Medical Assessor of the precise noise exposure, of which there was no ground of appeal, is that it was for a period of approximately 21 years. The history of noise exposure recorded by the Medical Assessor was of a two and a half year exposure as a process worker in the period from 1984 to 2000 and work with the respondent since 2005. The appellant’s statement did not state the duration of work as a process worker.
34.	There was no submission that the Medical Assessor erred in this factual conclusion. The importance of this finding undercuts the appellant’s submission. We return to this matter when addressing the grounds of appeal.
35.	The other important issue is that the appellant did not suggest that there was error with the Medical Assessor’s audiogram. The appellant’s submissions described the audiogram as:
“…down slopes consistent with a noise induced hearing loss pattern, ie it is less at 1500 and 2000 Hz, than at 3000 and 4000Hz which are greater.”
36.	The Medical Assessor described the audiogram in the following terms:
“In this case the hearing loss at 2000 cps is almost the same as at 3000 cps (5 dB is an insignificant difference) so the profile of the audiogram below 3000 cps is not consistent with that diagnosis.”
37.	The Appeal Panel has considered the nature and duration of the appellant’s occupational noise exposure found by the Medical Assessor and the nature and extent of the hearing losses on the Medical Assessor’s audiogram. The Appeal Panel finds that the Medical Assessor’s assessment to deduct the hearing losses below 3000 Hz does not contain error. 
38.	In addition, the appellant mentions the examples 9.1, 9.2, 9.3 and 9.6 in the NSW Workers Compensation Guidelines for the evaluation of permanent impairment, April 2016, re-issued 1 February 2021. The Appeal Panel notes that in all these examples all the ears with occupational noise induced hearing loss of gradual onset have hearing levels at 2000 Hz which are always at least 10 dB less than the hearing levels at 3000 Hz. In this matter on the Medial Assessor’s audiogram the hearing levels at 2000 Hz are merely 5 dB less than the hearing level at 3000 Hz which is inconsistent with the examples of occupational noise induced hearing loss in the Guidelines. 
39.	The Appeal Panel rejects the appellant’s submission that the examples provided in clauses 9.1, 9.2, 9.3 and 9.6 of the Guidelines support the appellant’s position. The Appeal Panel notes that on Dr Fagan’s assessment in the left ear the hearing level at 2000 Hz is merely 5 dB less than the hearing level at 3000 Hz which is inconsistent with the examples as discussed above.
40.	We do not accept that there was demonstrable error or incorrect criteria by the Medical Assessor in falling to include the hearing losses below 3000 Hz. This is because the relevant audiogram does not suggest that the hearing losses at those levels are due to industrial deafness.
41.	Furthermore, the uncontested factual finding made by the Medical Assessor is that the level of noise exposure capable of causing industrial deafness was slightly over 21 years. This is significantly different from the period suggested by the appellant, that is noise exposure of 31 years and Dr Fagan’s history of over 38 years. 
42.	The parties referred to other cases where different findings were made which included assessments at levels of 2000 Hz and lower. Further, findings of fact in other cases, do not create legal precedent: Edwards v Noble. Similar comments were emphasised by the Full Court of the Australian Capital Territory (ACT) in Coles Supermarket Australia Pty Ltd v Harris when it stated:
“Attempts to use factual precedents and parallels are likely to detract from the legal precedents and so lead to error: Vairy v Wyong Shire Council; Dederer.” 
43.	Based on the length of exposure and the configuration of the audiogram, we reject the appellant’s submission that there was any demonstrable error or application of incorrect criteria by the Medical Assessor in failing to include the hearing losses below 3000 Hz.
44.	The second ground of appeal is that the Medical Assessor failed to provide reason for failing to include the hearing losses below 3000 Hz. The Medical Assessor’s reasons for not allowing for hearing loss at those frequencies were based on the history of exposure and the profile of the audiogram. 
45.	The Medical Assessor has a statutory obligation to provide reasons (s 325 of the 1998 Act). Those reasons must be adequate and disclose the reasons sufficient to show the “actual path of reasoning” by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether, in the context of the medical appeal provisions under the 1998 Act, either the MAC contained a demonstrable error, or the assessment was made based on incorrect criteria.
46.	The reasons of the Medical Assessor were clearly adequate and disclosed why he did not associate the hearing losses below 3000 Hz to industrial deafness with reliance by the Medical Assessor on the detailed occupational noise exposure history he obtained and the nature and extent of all the hearing losses on his audiogram. This ground of appeal is rejected. 
47.	The third ground of appeal is that the Medical Assessor failed to properly consider Dr Fagan’s reports. This ground included the following submission:
“The MA erred in stating Dr Fagan did not give any particular reason for using the lower frequencies. Dr Fagan provided comprehensive reasons and relied upon examples in the Permanent Impairment Guidelines in support.”
48.	We observe that a Medical Assessor is required to form his or her own opinion and is not required to “decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions”. To the extent that the appellant suggested that the Medical Assessor should have accepted Dr Fagan’s opinion, such submission is clearly incorrect.
49.	The Medical Assessor’s reasons for rejecting the opinion of the Dr Fagan were:
“Professor Fagan apportioned the occupational hearing loss to the frequencies 1000 cps and above without giving any particular reason for doing so. I have given my reasons for my differing apportionment in this regard. The excessive involvement of the lower frequencies, including on his audiogram are strongly against his frequency apportionment being correct. He also said that he had obtained a history of 38 years of occupational noise exposure which differs from the history which I obtained from carefully questioning the worker and from his statement.”
50.	Dr Fagan included the lower frequencies because of the shape of his audiogram and the history of significant noise exposure for at least 38 years. The doctor stated:
“The configuration of the audiogram is consistent with exposure to significant noise levels for over 38 years. 
Where a claimant has been exposed to occupational noise as described to me, and for 38 years as in this matter, and has hearing loss to the extent described, I am satisfied that some of the lower frequencies below 2000Hz have been affected by occupational noise exposure. 
Having considered all of the evidence including the lengthy period of exposure and the configuration of the audiogram, then in my view the Applicant’s hearing loss from 1000 Hz to 4000 Hz is due to noise exposure at work. There is no other explanation identified to account for this loss apart from noise exposure. This approach is consistent with examples 9.1, 9.2, 9.3 and 9.6 at pages 46 – 51 of the NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment (4th edition) April 2016.”
51.	The Medical Assessor commenced with the statement that Dr Fagan allowed the frequencies at 1000 cps and above “without giving any particular reason for doing so”. That portion of the reasons was incorrect. However, the Medical Assessor then stated that he disagreed with Dr Fagan’s reasoning because of the “excessive involvement of the lower frequencies” and the difference in length of exposure. As we noted, the Medical Assessor obtained a history of noise exposure of slightly above 21 years whereas Dr Fagan had a history of 38 years of exposure. 
52.	Furthermore, there is a significant difference in the shapes of the audiogram provided by Dr Fagan and that provided by the Medical Assessor. The Medical Assessor accepted his audiogram on the day of his examination. 
53.	Whilst the comment by the Medical Assessor that Dr Fagan did not provide “any particular reason” is incorrect, it was followed by a summary of Dr Fagan’s actual reason for allowing the lower frequencies. That focus by the appellant on the looseness of language by the Medical Assessor when he stated that the Dr Fagan did not give “any particular reasons” when the Medical Assessor then addresses the reasons provided by Dr Fagan is not a demonstrable error. It is an example of a submission approaching the reasons of the Medical Assessor “with an eye keenly attuned to the perception of error” and ignoring the balance of the reasons provided by the Medical Assessor.
54.	In Bojko v ICM Property Service Pty Ltd Handley JA noted that the correct approach was mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang that
"... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
55.	We otherwise note that in Vannini the Court discussed the meaning of “demonstrable” in the context of a demonstrable error. Gleeson JA stated: 
“In this regard it has been said that error alone is not sufficient and that such an error must be ‘material’”. (Citations omitted.) 
56.	For these reasons we do not accept that the looseness of language by the Medical Assessor when he stated that Dr Fagan did not provide “any particular reasons” for allowing the frequencies at and below 2000 Hz was a demonstrable error. 
57.	We finally observe that the appellant submitted that it was open to the Appeal Panel to accept Dr Fagan’s audiogram. The was no basis for that submission in circumstances where the appellant did not challenge the accuracy of the audiogram undertaken by the Medical Assessor. 
Incorrect criteria
58.	The test for what amounts to an application of incorrect criteria was described by Basten JA in Campbelltown City Council v Vegan as “such matters as the tests set out in the Guidelines, where they are applicable”.
59.	The submission supporting the grounds of appeal only referred to “demonstrable error” although the cover document relied on both incorrect criteria and demonstrable error. 
60.	Our reasons on demonstrable error have discussed the references to examples clauses 9.1, 9.2 and 9.6 of the Guidelines raised by the appellant and found no incorrect criteria in the Medical Assessor’s assessment. Accordingly, we do not accept that the assessment was made based on incorrect criteria. 
CONCLUSION
61.	For these reasons, we have determined that the MAC issued on 27 February 2024 is confirmed.