The Personal Injury Commission (Commission) determines:

1. Pursuant to s 321(1) of the Workplace Injury Management and Workers Compensation Act 1998, the medical dispute set out below is referred to a Medical Assessor.
2. The medical dispute is as to:

(a) the nature and extent of the hearing loss suffered by the applicant, and

(b) whether hearing aids are reasonably necessary medical treatment as a result of any injury suffered in the employ of the respondent (with the deemed date of any injury being 13 March 2024).

1. The documents to be sent to the Medical Assessor are:

(a) Application to Resolve a Dispute;

(b) Reply, and

(c) this Certificate of Determination.

1. The matter should be fixed for preliminary conference before a Member on receipt of the Medical Assessment Certificate if the parties have not been able to resolve the dispute.

A statement is attached setting out the Commission's reasons for the determination.

1. Michil Chdid is employed by A New Image Rendering Pty Limited (New Image), a company of which he is a director. He has been so employed since 2011. On 13 March 2024 he claimed permanent impairment compensation for noise-induced hearing loss he alleges that he suffered in that employment and s 60 expenses for hearing aids. He had not previously made a claim for compensation for noise induced hearing loss.
2. Mr Chdid said in his statement that he migrated to Australia from Lebanon in 1995. He worked as a labourer in a furniture store in 1996 and 1997 and as a truck driver from 1997 to 2002. He said that he was not exposed to loud noise during those periods. He was then self-employed from 2003 to 2011, working as a renderer and he "started my own company" in 2011. On his evidence, the only entity against which he may have a claim is New Image.
3. Mr Chdid relied on a report by Dr Tamhane, ear, nose and throat surgeon, dated

5 March 2024. Dr Tamhane noted that Mr Chdid had undergone surgery to his left ear. He recorded that Mr Chdid had worked in noisy employment for about 25 years, and that he was self-employed for some of that time. Dr Tamhane undertook an audiogram which he said showed moderate to severe high tone sensorineural hearing loss in the right ear. In the left ear, he said that Mr Chdid had profound sensorineural hearing loss with no response at 3000Hz and 4000 HZ at 110dB. Dr Tamhane said that the tendencies, incidents and characteristics of the employment gave rise to a real risk of noise-induced hearing loss. 4. Dr Tamhane attributed the loss at 2000Hz, 3000Hz and 4000Hz in Mr Chdid's right ear to noise induced hearing loss. On the basis that "[h]earing loss as a result of noise exposure is always symmetrical and affects both the ears similarly", Dr Tamhane attributed the same percentage loss to Mr Chdid's left ear. He assessed 23.04% binaural hearing loss (after a deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) which he converted to 12% whole person impairment (WPI). Dr Tamhane recommended hearing aids. 5. New Image's insurer, EML, obtained a report from Dr Howison, ear, nose and throat surgeon, dated 12 July 2024. Based on the history of Mr Chdid's duties with New Image, Dr Howison concluded that the noise to which he was exposed would be sufficient to cause industrial deafness so that New Image was Mr Chdid's last noisy employer. He recorded that Mr Chdid suffered total loss of hearing in his left ear many years ago and that he had had surgery to his right ear. Dr Howison said that Mr Chdid does not have noise induced hearing loss because the "total loss of hearing in the left ear is never noise induced and noise induced hearing loss is never conductive in type". He said that the loss in Mr Chdid's right hear as a mixture of conductive and sensorineural hearing loss and that the bone conduction studies of the right ear showed a lesser loss at 4000 Hz than at 3000Hz and 2000Hz which is not conducive with noise induced hearing loss. Dr Howison observed that Mr Chdid's treating doctor, Prof Fagan, had never commented that he had industrial deafness and that Dr Tamhane's audiograms were not consistent with noise induced hearing loss. 6. The insurer issued two notices under s 78 of the 1998 Act on 31 July 2024 - one in respect of the claim for permanent claim and one in respect of the claim for s 60 expenses. There is no material difference in the matters relied on in each of two notices bearing the same date for disputing the payment of the relevant compensation. 7. The insurer had obtained reports from Prof Fagan who said on 11 May 2007 that there was no hearing in Mr Chdid's left ear due to a trauma many years ago and that there is fluctuating hearing loss in the right ear. The insurer said:

"Based on the assessment of Dr Howison, I dispute that your injury occurred in the course of your employment with A New Image Rendering NSW Pty Ltd or that your injury is covered by workers compensation."

1. On 15 January 2025 Mr Chdid's solicitors served a statement and a further report of Dr Tamhane dated 9 December 2024 and sought a review of the insurer's decision.
2. A review outcome was issued on 29 January 2025. The notice acknowledged both Dr Tamhane's opinion that the loss at 2000Hz, 3000Hz and 4000Hz was a result of noise exposure and Mr Chdid's evidence about the noise he was exposed to. EML said that it would reassess liability on receipt of a supplementary report from Dr Howison but maintained the dispute.
3. Dr Howison provided a supplementary report dated 3 February 2025. He said that Dr Tamhane's report did not change his opinion and confirmed that Mr Chdid did not have hearing loss consistent with noise induced hearing loss for the reasons in his previous report. He said that hearing aids were required but not as a result of industrial deafness.
4. Dr Tamhane provided a further report on 25 August 2025 having reviewed seven reports of Prof Fagan dated between 11 May 2007 and 17 April 2019, a CT scan report dated 11 May 2007 and an audiologist's report dated 28 April 2009. Dr Tamhane noted Prof Fagan's reports and recommendation for hearing aids and that Mr Chdid had stopped wearing a bone-anchored hearing aid (BAHA) in his left ear after some time. He said that he totally agreed with Prof Fagan's opinion. He confirmed his previous opinion as to the effect of Mr Chdid's noisy employment on his hearing.
5. Dr Howison prepared a further report dated 16 September 2025 in which he confirmed his previous opinion.
6. The insurer issued two further s 78 notices on 25 September 2025. Again, the substantive reasons for denying the claims are the same in each notice. Based on the opinion of Dr Howison in his original and supplementary reports, the insurer disputed that Mr Chdid's "injury occurred in the course of your employment ... or that your injury is covered by workers compensation".
7. Mr Chdid commenced proceedings on 1 November 2025 claiming compensation for permanent impairment and the cost of hearing aids.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The claim was listed for a preliminary conference on 12 December 2025 when Ms Huang, solicitor, appeared for Mr Chdid and Mr McCarthy, solicitor, appeared for New Image, instructed by Ms Wadick from EML.
2. The conference was long, consuming one and three quarter hours, with most of that time spent in conciliation. New Image pressed that the matter be listed for conciliation conference and arbitration hearing. When it was clear that conciliation was not successful, I requested that the parties provide oral submissions (to be recorded) as to why that was necessary before the matter was determined on the papers. Mr McCarthy sought that written submissions be provided, on the basis that he was not the solicitor with conduct of the file. I acceded to that request due to the time which had elapsed.
3. I made the following direction:

1. The respondent does not dispute that it employed the applicant in employment which had the tendencies, incidents and characteristics so as to give rise to a risk of causing noise-induced hearing loss and that it was the applicant's last noisy employer.
2. The deemed date of any injury is 13 March 2024.
3. The respondent disputes that the applicant suffers noise-induced hearing loss.
4. On that basis, the dispute between the parties is as to quantum - the applicant's position being that he suffers 12% WPI and the respondent's being that he suffers 0% WPI as a result of any injury deemed to have been suffered on 13 March 2024.
5. The respondent disputes that hearing aids are reasonably necessary as a result of any injury.
6. The question of the nature and extent of hearing loss and whether the applicant suffers noise-induced hearing loss can only be determined by a Medical Assessor.
7. The respondent does not consent to the matter being referred to a Medical Assessor for a binding assessment of the extent of noise-induced hearing loss. The respondent seeks a non-binding assessment as to whether the applicant suffers noise-induced hearing loss, potentially followed by a subsequent assessment of the extent of permanent impairment.
8. The applicant consents to the matter being referred to a Medical Assessor with notations in accordance with paragraphs 1 to 3 above.

1. Any party who contends that the matter should not be referred to a Medical Assessor for a binding assessment pursuant to ss 65 and 66 of the Workers Compensation Act 1987 is to lodge written submissions by close of business on Monday 15 December 2025.
2. The question of the nature of the referral will then be determined on the papers."
3. 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.

1. Submissions signed by Mr Harris, the solicitor with conduct of the matter for New Image were received on 15 December 2025.
2. New Image said that the matter should not be referred to a Medical Assessor but listed for conciliation conference and arbitration hearing "for determination of the threshold liability issue", being the dispute "on the basis of s 4" of Workers Compensation Act 1987 (the 1987 Act) set out in the decision notices. New Image said that the dispute was not as to quantum but a threshold liability dispute which falls within the exclusive jurisdiction of a Member. It said that a dispute as to liability was not a medical dispute as defined in s 319 of the 1998 Act so that a Medical Assessor did not have the power to determine it.
3. New Image referred to Manuel v BOC Ltd[1] (Manuel) and said that:

"O'Grady DP held that the question of whether a worker had suffered a 'further loss' of hearing was properly characterised as a factual dispute which needed to be determined before any referral for assessment to an approved medical specialist and relied on the decision in Haroun -v- Rail Corporation of NSW [2008] NSWCA 192 in which Handley JA stated (at 141):

'The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers Compensation Act 1987 . . . is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to an appeal to a Panel'."

1. New Image said that the dispute relates to factual and legal issues not medical issues and that only if the question of liability is determined in favour of Mr Chdid will there be a referral to a Medical Assessor.
2. New Image no longer considered that a non-binding assessment was appropriate because it may cause unnecessary delay or a waste of the Commission's resources (those being issues raised during conciliation).
3. Mr Chdid provided submissions on 16 December 2025, confirming his agreement that the matter be referred to a Medical Assessor. He noted that both Dr Tamhane and Dr Howison agreed that his employment had the tendencies, incidents and characteristics capable of causing industrial deafness. The point of divergence was that Dr Howison said that Mr Chdid did not suffer from noise-induced hearing loss.
4. Mr Chdid said that New Image was "misguided" in its approach and had not had regard to s 17 of the 1987 Act which

"deems industrial deafness to have occurred as if in 'one blow' on the last day of relevant noisy employment. Liability attaches to the last noisy employer once it is established that such employment had the tendencies, incidents or characteristics capable of causing industrial deafness. It is not necessary for a worker to prove actual causation or to apportion responsibility between employers, subject to limited exceptions."

1. Mr Chdid cited case law in support of those statements.[2] He said that the inquiry under s 17(1) is whether the worker was employed in relevant noisy employment which contributed, even to a minor degree, to the condition, citing Holcim (Australia) Pty Ltd v Thomas.[3] Mr Chdid submitted that there was no liability dispute but that in any event the Commission may determine a matter without a conference or formal hearing. He said that the dispute was as to the nature and extent of hearing loss which is a medical dispute in accordance with s 319(e) and s 326(c) of the 1998 Act.
2. The decision in Manuel, Mr Chdid submitted, did not assist New Image because it concerned a factual dispute as to whether employment which had ceased many years earlier was capable of giving rise to a further loss of hearing, requiring a determination as to whether the alleged injury had occurred.

1. The dispute raised by New Image is described in the most general terms - as a "liability dispute" and a dispute under s 4 of the 1987 Act. The issue was expressed in the broadest terms in the decision notices, at the preliminary conference and in its written submissions.
2. Though the Application to Resolve a Dispute does not refer to the disease provisions of the 1987 Act, noise-induced hearing loss is a disease injury as defined in s 4(b). Section 17 of the 1987 Act sets out special provisions for determining liability for an injury which is a loss of hearing.
3. Frequently, the liability issue to be determined in a claim for compensation for hearing loss is whether a worker was "employed in employment to the nature of which the injury was due". In Lobley, Cole JA, with whom the other members of the Court of Appeal agreed said:

"It follows from these authorities [Smith v Mann [1932] HCA 30; (1932) 47 CLR 426; Tame v Commonwealth Collieries Pty Ltd [1947] NSWStRp 9; (1947) 47 SR (NSW) 269 and Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32] that in determining whether, at the time when notice of injury was given, Mr Lobley was 'employed in an employment to the nature of which the injury was due', attention must be directed not to whether the employment then engaged in actually caused the injury but whether the 'tendencies, incidents or characteristics' of that employment were of a type which could give rise to the injury in fact suffered."

1. New Image has not disputed that it employed Mr Chdid in employment to the nature of which has the tendencies, incidents and characteristics which could give rise to the injury suffered. Whether or not a worker's employment had those qualities is frequently the only liability question determined by the Commission in respect of a claim for compensation for noise-induced hearing loss.
2. It does not appear from Mr Chdid's evidence that any of his other employment in Australia was noisy employment. In those circumstances, s 17 of the 1987 Act is of little assistance in determining how this claim should be managed because that section determines the identity of the employer who should pay compensation, not whether compensation is payable.
3. The question of whether or not Mr Chdid suffered an injury turns on whether he has in fact suffered any noise-induced hearing loss. Mr Chdid does not dispute that he suffers hearing loss of other kinds. The evidence suggests that the hearing loss resulting from other conditions is significant and the evidence attached to the Reply - particularly the records of Prof Fagan between 2007 and 2019 - shows that Mr Chdid has undergone significant treatment, not disclose in his statement.
4. The determination of the extent of the hearing loss is essentially medical and examination by a Medical Assessor is probably the most efficient way of determining whether or not Mr Chdid suffers an injury in the form of noise-induced hearing loss.
5. The definition of medical dispute in s 319 of the 1998 Act reads:

medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim -

(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) the nature and extent of loss of hearing suffered by a worker,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable."

1. The nature and extent of hearing loss is a medical dispute.
2. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, Emmett JA said:[4]

"However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of 'medical dispute'. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35])."(emphasis in original)

1. New Image referred to Manuel in support of its argument that there were factual and legal issues to be determined before referral. Mr Manuel claimed compensation for a further loss of hearing, made about 30 years after a successful claim which had been made after his retirement. An arbitrator of the Workers Compensation Commission found in favour of Mr Manuel's employer on the basis that the evidence showed that hearing loss did not continue to deteriorate after noise exposure ceased. Mr Manuel argued that his claim should have been referred for medical assessment.
2. The legislation in force at the time of that decision contained s 321(4)(a) which precluded referral for assessment of permanent impairment if liability was in issue. That subsection has been repealed.
3. Section 321A(1), enacted when s 65 of the 1987 Act was amended, now provides that regulations may be made with respect to the circumstances in which a medical dispute is "authorised, required or not permitted to be referred for assessment". No relevant regulations have been made consequent on the amendment to s 65.
4. O'Grady DP referred to Lobley and to Cole JA's statement quoted at [30] above. The Deputy President said:[5]

"The injury 'in fact suffered' in the present case is a 'further loss' of hearing. I accept the respondent's argument that there exists a factual dispute as to whether the 'tendencies, incidents or characteristics' of Mr Manuel's employment were such that they could give rise 'to the injury in fact suffered'. That dispute arises by reason of the evidence of Dr Seymour, which contradicts that of Dr Tamhane. The dispute concerns the very question posed by Cole JA in Lobley.

I am of the opinion that the dispute between the parties may properly be characterised as a factual dispute as addressed in Haroun and is one which needs to be determined before any referral for assessment to an AMS: s 321(4)(a) of the 1998 Act."

1. The factual question determined in that case was whether a further loss of hearing could be suffered when there had been no noise exposure after the previous deemed date of injury.
2. As noted above, the precise nature of the dispute as to injury in Mr Chdid's claim has not been clearly formulated. The decision notice dated 25 September 2025 essentially says that his hearing loss is not noise-induced hearing loss. It did not dispute that New Image employed Mr Chdid in employment which has the tendencies, incidents and characteristics which could give rise to a risk of suffering noise induced hearing loss. The dispute raised is essentially whether Mr Chdid has proved that he has suffered noise induced hearing loss.
3. That being so, the dispute is the nature as well as the extent of the hearing loss suffered which is a medical dispute as defined in s 319 of the 1998 Act. It appears clear that Mr Chdid suffers very significant hearing loss from other causes for which he underwent significant treatment before he commenced working for New Image. Dr Tamhane and Dr Howison have considered the records concerning that treatment but not in significant detail. The nature of the hearing loss is a matter for expert medical assessment (including such testing as is considered necessary) as is the extent of any noise-induced component.
4. The determination of that medical dispute is generally part of the matters referred to a Medical Assessor who is assessing permanent impairment. The Medical Assessor is also usually asked to offer a non-binding opinion as to whether hearing aids are reasonably necessary as a result of an injury. That question is appropriate in this case.
5. Having considered the submissions made by the parties and the issues set out above, I have reached the conclusion that the objects in s 3 of the 1998 Act are best served by referral of the question of the nature and extent of Mr Chdid's hearing loss to a Medical Assessor as a general medical dispute pursuant to s 321(1) of the 1998 Act. The findings made by the Medical Assessor should then permit the parties to resolve outstanding issues or to limit the issues to be determined by a Member in the future.
6. I make the orders set out on the first page of this Certificate of Determination.

[1] [2011] NSWWCCPD 20.

[2] Commissioner for Railways v Bain [1965] HCA 5; Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley); Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41.

[3] [2022] NSWCA 183.

[4] [2014] NSWCA 264 at [110].