DETERMINATION OF APPEAL PANEL	
	
CITATION:	Flemming v The Trustee for Isen Family Trust and Ors [2024] NSWPICMP 468	
		
APPELLANT:	Gordon Flemming	
		
FIRST RESPONDENT:

SECOND RESPONDENT:

THIRD RESPONDENT:	The Trustee for Isen Family Trust

The Trustee for Sim Don Family Trust

The Trustee for Walker Family Trust t/as TICKM Group	
		
Appeal Panel		
		
MEMBER:	Marshal Douglas	
		
MEDICAL ASSESSOR:	Brian Williams	
		
MEDICAL ASSESSOR:	Thandavan Raj	
		
DATE OF DECISION:	4 June 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment; whether Medical Assessor (MA) erred by making a finding that appellant did not suffer an injury of industrial deafness; parties at a conciliation conference agreed the appellant had suffered such an injury; a member had made a direction with the consent of the parties to remit the matter to the President so a referral could be made to the MA to assess the degree of permanent impairment of the appellant from that injury; whether MA erred by not assessing the appellant’s degree of permanent impairment from an injury of industrial deafness; Held – the Medical Appeal Panel found MA made an error; appellant re-examined; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 7 February 2024 Gordon Flemming, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 January 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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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, 4th ed 
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	The appellant was employed as a truck driver by a partnership comprised of the Trustee for the Isen Family Trust and the Trustee for Sim Don Family Trust and the Trustee for Walker Family Trust, the respondents. He worked for the respondents between June 2018 and 9 March 2021. His employment with them was noisy. Prior to his employment with the respondents, he had been employed by two other employers since 1985 in noisy employment. 
7.	On 19 January 2022 the appellant claimed compensation from the respondents’ insurer for permanent impairment that he said resulted from “hearing loss injuries sustained in the course of employment with your insured”. He also claimed compensation for the cost of hearing aids to treat that injury. The appellant relied on a report of ear, nose and throat specialist Dr Frank Elsworth dated 25 November 2021. Dr Elsworth had carried out audiometry of the appellant’s hearing, and based on an audiogram he obtained from that, he assessed the appellant had percentage binaural loss of hearing of 61.1% which correlated with a whole person impairment (WPI) of 33%. Dr Elsworth stated in his report that “it is my opinion that the hearing loss as described is a direct result of noise injury sustained during his working life”.
8.	To respond to that claim, the respondents’ insurer organised for the appellant to be examined by ear, nose and throat surgeon Dr Henley Harrison on 28 April 2022. Dr Harrison arranged for an audiologist to prepare an audiogram of the appellant’s hearing. Dr Harrison advised in a report dated 28 April 2022 that, based on that audiogram, he considered the appellant had a binaural hearing impairment of 57.9%. Dr Harrison considered however that the hearing loss of the appellant revealed in the audiogram he obtained was not typical of industrial deafness. He said that “on the balance of probability” the appellant had not suffered industrial deafness. 
9.	Relying on that report of Dr Harrison, the insurer notified the appellant under s 78 of the 1998 Act that it disputed that the claims he had made for compensation. It advised him that its reasons for disputing his claim was that it did not agree “that your injury was received in the course of employment as required by s4 of the Workers’ Compensation Act 1987”. It notified him that it relied on Dr Harrison’s assessment. 
10.	The appellant then commenced proceedings in the Personal Injury Commission (Commission) seeking determination of the claims that he had made for compensation. In the application to resolve the dispute that he lodged with the Commission to commence those proceedings he described his injury in these terms: “the applicant sustained binaural hearing loss and tinnitus during the course of his employment with various noisy employers as a result of being exposed to noisy machinery and environments on a repetitive and ongoing basis over his working life”. 
11.	The Commission referred the matter to one of its Members, namely Mr Paul Sweeney. On 22 August 2023 Member Sweeney, with the consent of the parties, determined that the respondents pay the appellant $6,039.28 for the cost of the appellant’s hearing aids and also directed that the matter be remitted to the President of the Commission to refer it to a Medical Assessor “to certify the degree, if any, of permanent impairment as a result of industrial deafness which notionally occurred on 9 March 2021”. That order and the direction was recorded in a certificate of determination the Commission issued on 22 August 2023 that was subsequently amended on 1 September 2023. 
12.	A delegate of the President duly referred the matter to the Medical Assessor to assess several medical disputes that were described in the referral in these terms: 
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 	the nature and extent of hearing loss suffered by a worker (s319(e))
 	the degree of permanent impairment of the worker as a result of an injury (s319(c))
 	whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
 	whether impairment is permanent (s319(f))
 	whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 		9 March 2021 - deemed
Body part/s referred: 	Hearing loss- industrial deafness
Method of assessment: 	Whole Person Impairment”
13.	The Medical Assessor examined the appellant on 8 December 2023 to assess the medical disputes that had been referred. He obtained a history of the appellant’s work in noisy employment, which commenced in 1985. With respect to the appellant’s employment with the respondents from 2018 to March 2021 the Medical Assessor noted that the appellant had to shout for four to five hours a day above the noise to which he was exposed in order to be heard by colleagues at a distance of one metre. The Medical Assessor concluded that that exposure equated to “8-hour equivalent continuous A-weighted sound pressure level of LAeq90dB(A) or above”. The Medical Assessor noted that more than two hours of exposure at that level of noise would be sufficient to cause industrial deafness. 
14.	The Medical Assessor examined the appellant’s ears and found both tympanic membranes normal and intact. 
15.	The Medical Assessor conducted audiometry using a calibrated audiometer. He attached the audiogram he generated from that to the MAC. He stated that he considered the audio thresholds to be valid and that the appellant’s responses were repeatable. The Medical Assessor noted that the audiometry he conducted revealed “a severe bilateral sensori-neural hearing loss”. 
16.	The Medical Assessor did not tabulate the results of his audiometry within the Table 4 of the MAC. 
17.	The Medical Assessor did not detail in the MAC the extent of the appellant’s hearing loss. 
18.	The Medical Assessor expressed his view that the appellant did not have industrial deafness. The Medical Assessor provided the following reasons for his conclusion that the appellant did not have industrial deafness:
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first and only with further noise damage are the lower frequencies effected progressively gradually from the higher frequencies to lower frequencies; that is to say 1500 Hz should be affected less than 2000 Hz and 1000 Hz less than 1500 Hz and so on. The progression of hearing loss in the low frequencies needs to be clinically significant if this damage is from exposure to loud noise. Continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to have a rest period.
Industrial deafness does not cause hearing loss in excess of 70dB. Both ears are
considered to be equally sensitive to temporary threshold shift and permanent threshold shift due to occupational noise exposure. Therefore, damage is equal or almost equal in both ears. This statement comes from ‘Occupational Hearing Loss, Second Edition, Revised and Expanded’, Sataloff and Sataloff, the authority on noise induced hearing loss. Occupationally induced hearing loss by itself does not cause the loss of hearing in the low frequencies to be greater than 70dB and even it is extremely unlikely that noise induced hearing loss alone can damage the higher frequencies greater than 70dB.
After consideration of the cumulative noise emission levels to which Mr Flemming has been exposed and the shape of the audiogram, I do not consider Mr Flemming to have industrial deafness.”
19.	Within the Table 4 of the MAC the Medical Assessor repeated this conclusion that the appellant does not have industrial deafness. 
20.	The Medical Assessor did not within the MAC provide an assessment of the degree of the appellant’s permanent impairment from his injury of hearing loss. 
PRELIMINARY REVIEW
21.	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.
22.	As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel found that the MAC contained a demonstrable error. Consequently, the Appeal Panel would need to correct that error which would involve revoking the MAC and issuing a new MAC. In order to do that, and mindful that the audiograms that Dr Elsworth, Dr Harrison and the Medical Assessor respectively obtained differed, the Appeal Panel considered that it would need to re-examine the appellant to obtain the necessary clinical data to be able to correct the error in the MAC. 
23.	The Appeal Panel appointed Medical Assessor Brian Williams, one of its Members, to conduct that examination. He did so on 15 May 2024. His report to the Appeal Panel on his examination is set out below. 
EVIDENCE
24.	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. 
SUBMISSIONS 
25.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
26.	In summary, the appellant submitted that the respondents had accepted at a conciliation conference conducted on 22 August 2023 that he suffered industrial deafness and thereby suffered an injury. The appellant submitted that the referral to the Medical Assessor required the Medical Assessor to assess the degree of his permanent impairment as a result of that injury. 
27.	The appellant submitted that the Medical Assessor exceeded his jurisdiction by finding that he did not have an injury of noise induced hearing loss, this having been resolved by the parties at the conciliation conference. 
28.	The appellant submitted that if the Medical Assessor had formed the view that his permanent impairment from his injury of noise induced hearing loss was 0% he should have expressed that and explained that, but he did not. The appellant submitted that consequently the MAC contains a demonstrable error as the Medical Assessor failed to assess the degree of his permanent impairment from his injury. 
29.	The respondents, in reply, acknowledged that at the conciliation conference conducted on 22 August 2023 the parties resolved that the respondents would pay the appellant’s cost of hearing aids and allow the appellant’s claim for compensation for permanent impairment to be referred to a Medical Assessor to ascertain the degree of the appellant’s permanent impairment as a result of industrial deafness notionally occurring on 9 March 2021. 
30.	The respondents submitted that the Medical Assessor obtained an independent audiogram relating to the appellant’s hearing. The respondents submitted that the Medical Assessor’s conclusion that the appellant’s hearing loss was not attributable to industrial noise exposure was based on the findings he made, the history he obtained from the appellant and his clinical reasoning. 
31.	The respondents submitted that the Medical Assessor was also required to assess the nature and extent that the appellant’s hearing loss, which included whether the appellant had noise induced hearing loss. 
32.	The respondents submitted that the MAC does not contain a demonstrable error. 
FINDINGS AND REASONS 
33.	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. 
34.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 
35.	In the section 78 notice the respondents issued to the appellant they disputed they were liable to pay the appellant the compensation the appellant claimed because he did not suffer an injury. It is clear from the submissions both parties made and also from the amended certificate of determination that the Commission issued recording the directions and determination Member Sweeney made on 22 August 2023, that the respondents have now conceded that issue. That is the respondents accept that the appellant had suffered an injury in the form of industrial deafness that notionally occurred on 9 March 2021. Using different terms, it was agreed by the parties that the appellant suffered a noise induced hearing loss due to his employment, and that this an injury of hearing loss caused by gradual process the nature of which is due to the appellant’s employment with the respondents. 
36.	Given the parties have now agreed on that, it was not open to the Medical Assessor to find that the appellant did not have industrial deafness. To repeat, again using slightly different words, the parties had agreed that the appellant had suffered an injury and had agreed on the nature of the injury he had suffered and consequently the Medical Assessor was required to assess the degree of the appellant’s permanent impairment from his injury. That alone was in essence all that remained in dispute between the parties. 
37.	Because the Medical Assessor found that the appellant did not have an injury of industrial deafness, and because the Medical Assessor did not assess the degree of the appellant’s permanent impairment from that injury, the MAC contains a demonstrable error. 
38.	The Appeal Panel observes what the Medical Assessor explained in the MAC about noise induced hearing loss being typically bilaterally symmetrical and progressive from the low to high frequencies is correct. The Appeal Panel will again touch on this issue below, but at this juncture the Appeal Panel observes that the audiogram that Medical Assessor obtained revealed that the appellant’s losses at 4kHz were greater than his hearing loss at 3kHz, which would mean that the appellant’s hearing loss at that threshold was a consequence of exposure to hazardous noise, contrary to what the Medical Assessor found. 
39.	In any event, as said, the Appeal Panel has found the MAC contains a demonstrable error. Consequently, the Appeal Panel needs to correct that error. The Appeal Panel notes that there have been several audiograms produced relating to the appellant’s injury, none of which are the same. In addition, the Medical assessor did not record a an assessment of tinnitus. The Appeal Panel therefore considered it could not rely upon that data to determine the appellant’s permanent impairment from his injury of industrial deafness and would need to examine him to obtain reliable clinical data by which to assess the degree of his permanent impairment from his hearing loss. As said earlier, the Appeal Panel appointed Medical Assessor Brian Williams to conduct that examination. Dr Williams provided the following report to the Appeal Panel on his examination: 
“1.	The worker’s medical history
OCCUPATIONAL HISTORY
•	He said he has not worked for the last 3 years.
•	TICKM Group 2018-2021 as a Truck Driver for 50% of the time and Warehouseman 50% of the time. He said he was exposed to the noise of 
o	Truck Driver – he said he drove a heavy rigid truck with canopy. He said it had no air conditioning and he drove with the window down. He said he made deliveries to Sydney, Gosford and Newcastle from the factory location in Tamworth. He said he was transporting kitchen cupboards and kitchen appliances. 
o	Factory noise – he said he was exposed to the noise of electric drills, forklifts driving, machinery cutting chipboard to fashion cupboards and dust exhausts. He said his shift was 8-17 hours per day 5 days per week. He said he was in noise all his shift. He said no hearing protection was worn. 
•	Labour Hire Company (labour company in Tamworth), NSW, 2013-2018 as a Labourer/Truck Driver/Plant Operator. He said he was exposed to the noise of earthmoving equipment, front end loaders, rollers, water carts, bobcats, hook left trucks, wacker packers, chainsaws lopping trees, jackhammers and Trumel machine. He said his shift was 8 hours per day 5 days per week. He said he was in noise all his shift. He said he had to raise his voice and shout to have a conversation at 1 metre. He said hearing protection was worn but not on plant operating. He said he wore hearing aids to hear the radio for instruction. He said he had air conditioning in the plant.  He said he did a pre-employment audiogram. He said he needed to obtain hearing aids to get the job.
•	Betts & Flemming Pty Ltd 1984-2013 as a Carpenter-Builder of new homes. He said he was exposed to the noise of power tools and construction sites, bobcats, backhoes, water cart trucks, wacker packers, concrete saws, power saws, ramset guns (22,500 rounds), nail guns and hammering. He said he had to raise his voice to have a conversation at 1 metre. He said hearing protection was worn. He said he did not have hearing aids then. 
Hearing Loss
He said he had no hearing loss at school. He gave a history of bilateral gradually progressive hearing loss since about 2010. He said the right is equal to the left. He said without hearing aids he has difficulty hearing conversation, needs to increase the volume of the television above others, has difficulty hearing in background noise and has difficulty conversing with his wife. He said he obtained binaural hearing aids in 2013. He said he is on his second set now. 
Tinnitus
He gave a history of bilateral constant ringing. He said the right is equal to the left. He said it does not interfere with his activities of daily living. He said it interferes with sleep induction at night for 30 minutes every night. He said he has had no treatment for his tinnitus. He said he has not discussed his tinnitus with his GP or a treating ENT Specialist. 
Vertigo / dizziness
He gave no history of vertigo.
PAST HISTORY
He said his brother has hearing aids at age 53 years and he worked in noise for about 25 years. He gave no history of direct ear or head trauma. He gave no history of otitis media or ototoxic exposure. He gave no history of otalgia (ear pain) or otorrhoea (ear discharge). He gave no history of ear surgery. 
He gave no history of heart disease, stroke, diabetes, thyroid disease, asthma, hayfever, TB or obstructive sleep apnoea. He gave no history of motor vehicle accidents. He said he is a non smoker. He said his medications were antihypertensives, Tramadol for back pain and Amitryptiline. 
2. 	Findings on clinical examination
On examination I observed the following.
Ears
Otomicroscopy
Right Ear:
His right external auditory canal has small exostosis.
His right tympanic membrane is intact.
Left Ear:
His left external auditory canal has small exostosis.
His left tympanic membrane is intact.
Weber Test:	Using the 512Hz tuning fork his Weber test was central.
Rinne Test:	Using the 512Hz tuning fork his Rinne test is positive bilaterally.
Nose
Anterior rhinoscopy is normal.
He said he has had nasal tip surgery for skin cancer.
Throat
His oropharynx is normal. 
He had no cervical lymphadenopathy. 
AUDIOGRAM
My pure tone audiometry was performed on 15.5.24 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. His responses were repeatable and I considered accurate auditory thresholds were obtained. His pure tone audiogram showed a bilateral sensorineural hearing loss.
Injury deemed to have happened on:	Frequency Hz	Left dB HL
Air     Bone	
Right dB HL
Air      Bone	
Total % BHI	
9/3/2021	500	40	35	45	35	6.8	
	1000	50	45	50	50	12.1	
	1500	65	60	55	60	11.5	
	2000	70	75	75	70	11.8	
	3000	65	65	65	70	7.0	
	4000	70	70	70	70	7.5	
	6000	75		80			
	8000	80		85			
Mr Flemming has a history of bilateral hearing loss and bilateral tinnitus. He gave a history of occupational noise exposure as described above. The above medical history demonstrates no other competing medical cause for his hearing loss. Physical examination and pure tone audiometry indicate a bilateral sensorineural hearing loss. The responses I obtained upon pure tone audiometry are repeatable on ascending and descending threshold measurement and I considered them to represent accurate auditory thresholds. 

Signed:	Dr Brian Williams”
40.	The Appeal Panel adopts the history Medical Assessor Williams obtained and his findings from his clinical examination of the appellant, and the audiogram he obtained from his pure tone audiometry performed on 15 May 2024. The Appeal Panel is satisfied that Medical Assessor Williams examination was thorough and is satisfied that the audiogram he obtained is accurate given the appellant’s responses were repeatable and that Medical Assessor Williams’ view is that the audio thresholds he obtained was accurate. 
41.	The Appeal Panel notes that hearing loss that is due to occupational noise is the consequence of damage to the hair cells in the cochlear. The cochlear is part of the inner ear and is similar in structure to a seashell. It is approximately 33mm in length. It has hair cells along its length and damage to those hair cells from occupational noise will cause hearing loss. The hair cells that commence approximately 10mm along the length of the cochlear from its basal opening are the first to be damaged by exposure to hazardous occupational noise, and the hearing loss at frequencies affected in this region of the cochlear are at 3, 4 and 6 kHz. Hence, where the hearing loss at the frequency below 3 kHz is greater than the loss at 3 kHz, then that loss below 3kHz is not indictive of a loss due to hazardous occupational noise.
42.	The configuration of the audiogram Medical Assessor Williams obtained of the appellant’s sensori-neural hearing loss is not such that the appellant’s sensori-neural hearing loss is caused solely by the appellant’s exposure to occupational noise. The appellant’s level of hearing losses at the frequency of 2000 Hz in both ears are greater than the level of hearing loss at the frequency of 3000 Hz. Bearing in mind the nature and duration of the appellant’s exposure to occupational noise, as detailed in the history Medical Assessor Williams obtained, and his findings from his medical examination including from pure tone audiometry, the Appeal Panel considers that the appellant’s hearing losses at the frequencies of 3-4 kHz are due to occupational noise exposure and that the appellant’s hearing losses below 3 kHz are not caused by his exposure to occupational noise. 
43.	This is because in the left ear the level of hearing losses at the frequencies of 1.5 and 2 kHz are equal to or greater than those at 3 kHz which is inconsistent with occupational noise induced hearing loss. In the right ear the level of hearing loss at the frequency of 2 kHz is greater than the hearing losses at the frequencies of 3 and 4kHz which is inconsistent with occupational noise induced hearing loss. Accordingly, the profile of the extensive hearing losses below the frequency of 3 kHz are inconsistent with his occupational noise exposure. The Panel finds on the balance of probabilities that the appellant’s hearing losses below 3 kHz are of uncertain aetiology and are non-work-related. The Panel finds on the balance of probabilities that the appellant does have severe work-related tinnitus and have assessed it at 1% as it interferes with sleep induction.
44.	For these reasons, the Appeal Panel has determined that the MAC issued on 9 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W9307/23	
Applicant:	Gordon Flemming	
Respondent:	The Trustee for Isen Family Trust and The Trustee for Sim Don Family Trust and The Trustee for Walker Family Trust t/as TICKM Group	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Kenneth Howison and issues this new Medical Assessment Certificate as to the matters set out in the table below:
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:
Injury deemed to have happened on:	Frequency Hz	Left dB HL
Air     Bone	
Right dB HL
Air      Bone	
Total % BHI	
Occupational % BHI	
9/3/2021
     
     
     
     
     
     	500	40	35	45	35	6.8	0.0	
	1000	50	45	50	50	12.1	0.0	
	1500	65	60	55	60	11.5	0.0	
	2000	70	75	75	70	11.8	0.0	
	3000	65	65	65	70	7.0	7.0	
	4000	70	70	70	70	7.5	7.5	
	6000	75		80				
	8000	80		85				
TOTAL % BHI: 56.7%	
Less Pre-existing non-related loss: 42.2%	
Less Presbyacusis correction: 0.2%	
Add % of severe tinnitus: 1.0%	
Adjusted total % BHI: 15.3%	
Resultant total BHI of 15.3% = 8% whole person impairment (Table 9.1)