1. On 7 July 2025 Mr Manning, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Brian Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 June 2025.
2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the 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).

1. Mr Manning is a 58 year-old pilot who has worked with a variety of different employers, in different roles, but generally working with and around planes for his working career. It has been agreed between the parties that the respondent to this appeal, the Royal Flying Doctor Service of Australia, was the last noisy employer to which the injury in the nature of hearing loss was due. Some of Mr Manning's employment has been in employment outside of NSW, including in ACT and Queensland.
2. Mr Manning gives a history of difficult with hearing for about 10 years. He has significant hearing loss and made a claim for lump sum compensation on the respondent employer. The claim was disputed and referred to the Commission for determination, with the MAC being issued on 13 June 2025. The Medical Assessor assessed 8% whole person impairment due to hearing loss, which means that Mr Manning falls under the threshold for an entitlement to compensation. He now appeals against that assessment.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no such examination was requested there is sufficient information contained in the MAC and the material before the Medical Assessor to determine the appeal.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submits that the Medical Assessor erred in the following ways:

(a) failed to include losses at lower frequencies;

(b) failed to give adequate reasons for such failure;

(c) failed to properly consider Dr Fagan's assessment, and

(d) failed to consider Dr Howison's assessment.

1. The respondent opposes the appeal, submitting that the Medical Assessor was correct in his findings and this is evident from the MAC. It was appropriate for the Medical Assessor to exclude the lower frequencies, having regard to the history taken as well as the audiogram and examination findings. The respondent further submits that the Medical Assessor has appropriately considered the report of Drs Fagan and Howison.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. This appeal concerns whether certain frequencies should be included in the assessment of impairment, and accordingly the Appeal Panel's consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):

"Secondly, s 328(2) requires that the review 'is limited to the grounds of appeal on which the appeal is made.' Because the gateway function of the Registrar is satisfied if 'at least one of the grounds' has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made."

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The Medical Assessor has included the frequencies at 3000Hz and 4000Hz in his assessment of impairment.
4. Although separated into four grounds, the appeal concerns a singular issue: whether the frequencies below 3000Hz should be included in the assessment of impairment. The appellant has divided his submissions into two sections, dealing with the decision of the Medical Assessor and his reasons for excluding those frequencies first, and then whether the Medical Assessor has appropriately considered the other medical opinions before him.

The inclusion of lower frequencies and the reasons provided

1. The Medical Assessor provides the following reasons for assessment on page 5 of the MAC:

"Mr Manning has a history of bilateral hearing loss unaccompanied by 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 maximal in the high frequencies with left asymmetry. 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. The configuration of his sensorineural hearing loss is not one wholly caused by his occupational noise exposure as described above. > > Therefore considering his medical history and physical examination including pure tone > > audiometry, I formed the opinion that his sensorineural hearing loss at 3-4kHz are caused by occupational noise exposure. The remainder of his hearing losses are unrelated to his occupation. This is because the nature and duration of his occupational noise exposure is inconsistent with the nature and extent of his hearing losses below 3kHz. They are of uncertain aetiology (non-work-related)."

2. The appellant submits that the audiogram develops in a format consistent with a noise induced hearing pattern (commonly described as downward-sloping). The appellant submits that it is imperative to consider the history of noise exposure when considering the audiogram, as the greater the exposure, the greater the likelihood of lower frequencies being affected. The appellant refers to Shone v Country Energy (2007) NSWWCCMA 18 (Shone).
3. As a starting point, the Appeal Panel agrees with the general interpretation of how the appellant expresses the opinion in Shone, that is whether the frequencies below 2000Hz are included in any assessment of impairment will depend on the individual facts in each matter. There is no reason why such principle does not extend to all frequencies including at 2000Hz, as is seen in the present case. Shone was also determined in factual circumstances where the worker had been exposed to noise for a period of time far in excess of what is seen in the present case, of some 49 years.
4. What must be considered, in each case, is the extent of hearing loss in the context of the nature of noise exposure and the duration of such exposure. Considerations of the worker's age may come into play where there is a correction for presbyacusis.
5. The Medical Assessor takes a thorough history of Mr Manning's occupational noise exposure, commencing on page 2 of the MAC. This dates back to 1984. It is important to note that this is not a case of constant noise exposure, every day, all day, since that time. There are periods where Mr Manning did not work, and periods where he was exposed to less noise and less frequently. In summary, based on the history recorded in the MAC, Mr Manning's noise exposure relevant for consideration (that is, prior to the date of injury recorded in the MAC):

(a) 1984-1999, Illawarra Flying School - four hours per day, four days per week;

(b) six months (in an uncertain period), NSW Police - eight hours per day, three days per week, and

(c) 2007-5 March 2019, with the respondent - eight hours per day, five days per week, including periods of greater exposure (jet engines) three times a week for five minutes each time.

1. This history is different to that provided in Mr Manning's statement, as well as given to Dr Howison and Dr Fagan. Dr Howison's history is from 1987-2007, Mr Manning worked as a pilot and flying instructor, exposed to aircraft noise, and from 2007-2019, Mr Manning worked for the respondent, exposed to five hours per day of noise.
2. Dr Fagan takes a history similar, of various employers from 1987-2007, and then with the respondent from 2007-2019. The exposure for the entire period was said to be eight hours per day, five days per week.
3. Mr Manning's statement records a history of exposure identical to that take by Dr Fagan, that is eight hours per day, five days per week, with various employers from 1987-2007, and then from 2007-2019 with the respondent.
4. There are different histories given here. The most noticeable is the earlier start date with Illawarra Flying School, and the extent of exposure in that employment. Additionally, the Medical Assessor takes a history that Mr Manning worked as a computer programmer for eight years, without any noise exposure (presumably, from the history given, from 1999-2007). That is a total of around 27 years of exposure, but also a period of 15 years of less significant exposure (around half) each day.
5. The appellant has not addressed this inconsistency in submissions or raised it as a ground of appeal. The appellant (in respect of a different ground of appeal) notes that the difference of 35 years recorded by Dr Fagan and 33 years recorded by the Medical Assessor "does not constitute a substantial or material difference for using the lower frequencies".
6. The Appeal Panel are satisfied that the Medical Assessor is entitled to rely upon the history he took from the worker on the day of examination.
7. The Appeal Panel acknowledge, as the appellant submits, that the audiogram represents a downward sloping pattern. That is not the sole relevant consideration. Also relevant for consideration include the length of exposure (in terms of the number of years Mr Manning was exposed to noise), which, based on the history in the MAC, was 27 years; the extent of that exposure (which was for a large portion of that exposure for four hours per day), and the volume of the noise exposure.
8. In terms of that final point, one must consider the type of noise Mr Manning was exposed to. There is no doubt, and it is not suggested by the Appeal Panel, that it was not noisy employment. Dr Fagan estimated it to be in excess of 90db. There were occasional exposures, within in a working week, to greater volumes (for example jet engines). This is contrasted with commonly seen industrial noise exposure in occupations like a boilermaker or a coalminer, using tools such as grinders, jackhammers, ramset guns and the like. The decibel level of such exposure is significantly higher.
9. It is within that factual matrix that the inclusion of frequencies must be considered. Here, we have a worker with exposure of 27 years to noise, at a significant (but not extreme) level. The audiogram provides hearing loss that is far in excess of what is clinically acceptable given the level of exposure of Mr Manning. This is in all frequencies. That is, Mr Manning's hearing loss at all frequencies is excessive and not consistent with the type, duration and level of exposure he has experienced in his work.
10. On this factual background it is appropriate to consider what frequencies have been affected by industrial deafness, or whether, as the Medical Assessor has found, some of the loss is due to another cause, of uncertainty aetiology. The Medical Assessor has found the frequencies most particularly at 500Hz, 1000Hz, 1500Hz and 2000Hz inconsistent with industrial deafness. It is the Appeal Panel's view that he was entitled to reach such a conclusion, based on his clinical judgement and expertise. Further, it is the Appeal Panel's view that such a conclusion was the correct one, based on the evidence.
11. It may be more common in medical assessments, in the workers compensation space, for frequencies in the 2000-4000Hz range to be included. There is no legal principle or clause in the Guidelines that requires those frequencies to be included in every matter. Per Shone, all frequencies must be considered but the inclusion of certain frequencies forms part of the assessment process, and is within the clinical judgement of the Medical Assessor.
12. The appellant has also challenged the reasons provided by the Medical Assessor, submitting that he has failed to provide adequate reasons for not including the lower frequencies. The Medical Assessor's reasons are set out above. The last two sentences of that explanation are the most pertinent:

"This is because the nature and duration of his occupational noise exposure is inconsistent with the nature and extent of his hearing losses below 3kHz. They are of uncertain aetiology (non-work-related)."

13. Reasons in an administrative decision-making context are meant to inform. Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 (Kaur), applied Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 to the NSW workers compensation scheme. At [26] he opined:

"Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that: > > 'The statement of reasons... explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.'"

14. In the context of a medical dispute, assessed by a Medical Assessor and an appeal determined by two medical experts and a legal expert, the "Court" involves a degree of expertise. The Medical Assessor's reasons must also be considered in the context of the clinical judgement and expertise he or she brings to an assessment, based on years of training, practice, and experience.
15. In the present case, the Medical Assessor has explained his reasons adequately. The frequencies below 3000Hz were not included because they were inconsistent with the nature and duration of occupational noise exposure. This involves a level of medical expertise, but the reasons themselves follow a logical path.
16. These two grounds of appeal, presented together in the appellant's submissions, are not made out.

1. The appellant presents this as two grounds of appeal, but it is the same submission: that the Medical Assessor failed to consider the opinions of Drs Fagan and Howison, who included the lower frequencies in their assessment.
2. The Appeal Panel referred to Kaur above. The role of the Medical Assessor is not to choose between competing opinions, but rather to reach his or her own conclusion based on the assessment taken.
3. The Medical Assessor refers to the competing opinions on page 6 of the MAC:

"Report by Dr P Fagan 7.3.24 > > Comment > > I have read and considered this report. I prefer my history, examination, audiogram and > > assessment. > > Dr Fagan states the consultation took place via videolink. > > Dr Fagan made no addition for tinnitus. > > Dr Fagan assessed 12%WPI due to industrial deafness. Dr Fagan assessed 1-4kHz in > > the right ear and an equal amount in the left ear. > > ... > > Report by Dr K Howison 10.10.24 > > Comment > > I have read and considered this report. I prefer my history, examination, audiogram and > > assessment. > > Dr Howison made no loading for severe tinnitus. > > Dr Howison assessed 10.0%WPI due to industrial deafness. > > Dr Howison made a s323 deduction of 10% for work outside NSW, therefore his > > assessment of industrial deafness is 9.0%WPI. > > Audiogram by Freedom Hearing 13.12.23 > > Comment > > I have read and considered this audiogram."

4. It is clear, from these reasons, that the Medical Assessor has considered the medical opinions referred to by the appellant. He has read the reports, explained the findings (in brief) and noted where they were different to his findings. The Appeal Panel do not accept that he is required to do any more, or explain why he disagreed with those opinions. Reasons do not need to explain findings not made or paths not taken in reaching a conclusion.
5. Regardless, when read as a whole, the Appeal Panel are satisfied that the Medical Assessor has explained why he did not include the lower frequencies. The fact that other assessors included those frequencies do not make the reasons provided inadequate. When read as a whole and fairly, adequate reasons have been provided.

1. The Appeal Panel are not satisfied that the MAC contains a demonstrable error. In accordance with that finding, and for the reasons given above, the MAC is confirmed.