Plaintiff v First Defendant

1 The plaintiff was born on 23 March 1952 and is presently 72 years of age.

2 He was employed as a labourer for about 33 years at CUB Pty Ltd ('CUB') until he retired in 2011.[1] He was exposed to noise in that employment, and seems to have first noticed hearing difficulties in the early 2000s.

3 The plaintiff's hearing was tested about six times during his employment with CUB, which broadly revealed that his hearing was reducing over time.

4 On 28 January 2021, the plaintiff's hearing was assessed by Mr Gary Fitzsimons, audiometrist. Mr Fitzsimons took a history of gradual onset of hearing loss symptoms over 25 years, as well as intermittent tinnitus over the past two years. Mr Fitzsimons assessed a whole person impairment of 11%; which took account of a 3.8% correction for age related hearing loss as well as a 'loading' of 2% for tinnitus. He recommended that the plaintiff be fitted with hearing aids, which he expected would assist with the plaintiff's tinnitus by 'masking its effects' as well as ameliorating the effects of his hearing loss.[2]

5 On 17 September 2021, the plaintiff claimed an impairment benefit in respect of '[n]oise induced hearing loss and tinnitus'.[3]

6 The first defendant's agent ('agent') referred the plaintiff for a hearing loss assessment by Dr T John Redhead, otorhinolaryngologist.

7 On 21 April 2022, Dr Redhead reported that the plaintiff had suffered 'noise induced hearing loss' of 8.7%, which equated to 0% whole person impairment. Dr Redhead referred to the guidelines published by the Australian Society of Otolaryngology, Head and Neck Surgery Victorian Section ('ASOHNS Guidelines') and the AMA Guides and made no additional allowance for tinnitus beyond its effect on the plaintiff's hearing loss.[4]

8 Based on the assessment by Dr Redhead, the agent notified the plaintiff that -

(a) liability was accepted for diminution of hearing, but rejected for tinnitus;

(b) he had no entitlement to an impairment benefit because his degree of permanent impairment had not been assessed as 10% or greater; and

(c) he could dispute the assessment and, in that event, he would be referred to a medical panel.[5]

9 On 3 November 2022, the plaintiff accepted the agent's determination of liability, but disputed the assessment of impairment.[6]

10 On 28 February 2023, medical questions were referred to a medical panel, together with a collection of claim and other documents, including the reports of Mr Fitzsimons and Dr Redhead.[7]

11 The medical panel was comprised of one member, Professor Andrew Sizeland, otolaryngologist ('Panel').

12 The plaintiff provided an initial undated written submission to the Panel,[8] and later provided further undated written submissions[9] which referred to and supplied a copy of Scardamaglia v Amcor Pty Ltd &Anor ('Scardamaglia').[10]

13 The Panel examined the plaintiff on 31 August 2023 and provided its certificate of opinion on 5 September 2023, which states, relevantly -

Question a) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s assessed in accordance with Division 4 of Part 2?

Answer: The Whole Person Impairment calculated in accordance with the Act is 0%. The degree of impairment is permanent.

Question b) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in Section 221?

Answer: No.[11]

14 The Panel's certificate of opinion was accompanied by its written reasons.[12]

15 The Panel stated that it had formed its opinion by reference to the documents provided, as well as the history given by the plaintiff and its findings on examination.

16 The Panel recorded the substance of the history reported by the plaintiff. In particular, it recorded that the plaintiff had been 'fitted with hearing aids 12 months ago which helped with conversations' and that he 'had not been troubled by tinnitus for the last 12 months'.[13]

17 The Panel then referred to its physical examination of the plaintiff's ears and stated that it was satisfied the plaintiff could undergo audiometric examination.

18 In respect of the audiogram, the Panel calculated hearing loss in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 edition) published by the National Acoustic Laboratory and considered the audiogram to be 'an accurate representation of the worker's hearing thresholds'.[14]

19 The Panel thereafter referred to the ASOHNS Guidelines and ultimately calculated a relevant binaural hearing loss of 9.7%.

20 From that point, the Panel considered the issue of tinnitus, as follows -

The Panel noted the worker's past history of bilateral tinnitus, and that the worker no longer was troubled by this affliction.

The Panel also noted the text on page 9/224 of the Guides which states "Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage up to 5% may be added to the impairment for hearing loss." The Panel also noted the ASOHNS Guidelines, Revised February 2017, Point 7a which states "The 4th Edition of the AMA Guides relevant to ENT impairment assessment refers only to the effect of tinnitus on the function of the ear. This means the effect of tinnitus on hearing and any affect on the pure tone audiogram will be accounted for in that evaluation of hearing." Further the Panel noted the recent Supreme Court of Victoria judgment dated 15 March 2023 in the matter of Scardamaglia v Amcor Pty Ltd & Anor which states that "the Panel erred by failing to consider the effects of tinnitus on the hearing function of the ear as provided for by the ASOHNS Guidelines. The ASOHNS Guidelines referred to the ENT assessment under Chapter 9 of the AMA Guides, which remains relevant on the question of any specific allowance to be made for tinnitus in the presence of hearing loss. That measurement is informed by the severity of the condition and the degree to which it interferes with the hearing function of the ear....Accordingly, in conducting its assessment for industrial deafness, the Panel should have made any additional allowance of up to 5% for the effect of tinnitus as it considered appropriate, in additional to the binaural loss of hearing assessed and determined in accordance with the NAL Procedure."

The Panel noted page 9/224 of the Fourth Edition Guides which states 'tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore an impairment percentage of up to 5% may be added to the impairment for hearing loss'. The Panel noted that the worker described no difficulty with impairment when the volume was elevated or in quiet situations (where the tinnitus would still be present) and furthermore noted its audiological testing showed 90% to 95% (normal) speech discrimination scores once the effects of hearing loss had been removed by appropriate amplification. The Panel concluded that there was an impairment percentage of 0% for the effect of tinnitus as the condition does not interfere with the function of the ear and does not impair speech discrimination.[15]

21 In short, the 9.7% relevant binaural hearing loss that the Panel considered the worker to have experienced included 0% for tinnitus and resulted in a whole person impairment of 0%.

22 For completeness, the Panel noted the report of Dr Redhead as well as the plaintiff's submissions.[16]

23 The plaintiff commenced proceedings by originating motion filed 5 October 2023.[17]

24 The originating motion articulated the following omnibus style 'ground of review'[18] -

1. In determining its opinion upon question (a) the Panel fell into jurisdictional error and/or error of law by allocating 0% in respect of the worker's tinnitus under the AMA Guides such that the resulting assessment was 9.7% binaural hearing loss.

(a) The Panel was required to apply the AMA Guides when assessing the plaintiff's degree of impairment.

(b) An additional allowance of up to 5% BHL may be added to work-related hearing loss before conversion to WPI under Chapter 9 of the AMA Guides and s. 91(4) of the ACA.

(c) The AMA Guides expressly provide for assessing the functions of the ear being hearing and equilibrium. The criteria for evaluating hearing impairment is relatively specific but in contrast, the criteria for evaluating disturbances of equilibrium are more general. In particular, 9.1 provides tinnitus is not measurable - therefore, the physician should estimate an impairment percentage based on the severity of those conditions and the degree to which they interfere with the functions of the ear, and a percentage that is consistent with established values. Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage up to 5% may be added to the impairment for hearing loss.

(d) The Panel noted that the worker described no difficulty with impairment when the volume was elevated or in quiet situations (where the tinnitus would still be present) and furthermore noted its audiological testing showed 90% to 95% (normal) speech discrimination scores once the effects of hearing loss had been removed by appropriate amplification. The Panel concluded that there was an impairment percentage of 0% for the effect of tinnitus as the condition does not interfere with the function of the ear and does not impair speech discrimination.

(e) The Panel's reasons attach the results of audiological testing and include speech audiometry. The speech audiometry test results describe speech scores are "consistent with PTA".

(f) The Panel erred in requiring tinnitus to impair speech discrimination. The severity of the condition is a basis for the assessment of tinnitus.

(g) The Panel erred in assessing the plaintiff's speech discrimination after applying appropriate amplification. This is akin to testing hearing loss while the person is wearing hearing aids. This method of testing is not in accordance with the Guides or appropriate.

(h) The Panel has failed to account for and/or consider genuinely this part of the plaintiff's condition.

(a) In the premises, in circumstances where the Panel

a. Had a history of tinnitus;

b. Was required to apply the AMA Guides concerning tinnitus-

The Panel has

1. Misunderstood its task in particular in relation to the AMA Guides and tinnitus;
2. Misconstrued and/or misapplied the AMA Guides including at 9.1 and 9.1a thereof;
3. Failed to take into account a relevant consideration being the plaintiff's tinnitus symptoms;

(b) This error of law was material to the opinion of the Panel, in that including tinnitus had the potential to increase the assessment of whole person impairment such that the plaintiff is therefore aggrieved.

25 Professor Andrew Sizeland, the second defendant, indicated that he would abide by the determination of the Court.[19]

26 The plaintiff and first defendant each filed and served written submissions, and the plaintiff filed and served a short reply.

27 In written argument, the plaintiff contended that the Panel had erred in assessing 0% for tinnitus. In particular, the plaintiff submitted that the Panel had erred in -

(a) relying upon the results of testing involving amplification; and

(b) failing to consider matters other than speech discrimination.[20]

28 In respect of the first of those contentions, the Panel was said to have failed to apply parts of sections 9.1 and 9.1a of the AMA Guides. Particularly -

Tinnitus in the presence of unilateral or bilateral hearing loss ...

Prosthetic devices must not be used during the evaluation of hearing sensitivity ...[21]

29 In commendably succinct oral argument, counsel for the plaintiff confirmed that the second of the plaintiff's written contentions was not pressed[22] and described the remaining contention as 'about the interpretation of the [AMA] Guides'.[23]

30 In that regard, counsel referred to authority, as well as passages in the AMA Guides and ASOHNS Guidelines, and submitted that the Panel had failed to comply with what was said to be a 'test' stated in section 9.1 of the AMA Guides,[24] namely the phrase -

Tinnitus in the presence of unilateral or bilateral hearing loss ...

31 In that connection, counsel referred to the 'treatment of tinnitus' in the Panel's reasons, particularly the following statement -

... furthermore [the Panel] noted its audiological testing showed 90% to 95% (normal) speech discrimination scores once the effects of hearing loss had been removed by appropriate amplification.[25]

32 Counsel submitted that the Panel had there taken into account the results of speech audiometry having 'eliminated the hearing loss'; which was said to be 'in direct contradiction' of the 'test'. In that regard, counsel submitted that the Panel had 'taken into account an irrelevant consideration, which is ... speech discrimination in the presence of amplification'.[26]

33 In the course of that overall submission, counsel for the plaintiff sought to advance assertions concerning the Panel's speech audiometry testing, although that was said to be 'not really the main point'.[27]

34 Counsel also sought to draw support from the earlier extracted sentence in section 9.1a of the AMA Guides, namely -

Prosthetic devices must not be used during the evaluation of hearing sensitivity.[28] ...

35 Counsel described that sentence as a 'prohibition on this very thing of amplification', and sought to explain that 'amplification does exactly the same thing as a hearing device'. In that connection, counsel submitted that, as the Panel had been prohibited 'directly', it should not achieve the same result 'indirectly'.[29]

36 In response, counsel for the first defendant highlighted aspects of the plaintiff's originating motion, the Panel's reasons, several authorities, the AMA Guides and the ASOHNS Guidelines and, in substance, submitted that the Panel had made no error.[30]

37 In particular, counsel for the first defendant submitted that -

The AMA Guides provide no more than if a person has tinnitus in the presence of hearing loss, there can be an additional allowance of up to 5 per cent. But that sentence of the AMA Guides doesn't dictate how the assessment is to be undertaken.

Properly conducted speech audiometry testing was a matter which was capable of being relevant to those conclusions reached [by the Panel].[31]

38 In Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot'), French CJ, Crennan, Bell, Gageler and Keane JJ stated -

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. ... The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[32]

39 The reasoning of the High Court in Wingfoot has since been referred to and relied upon in numerous decisions of the Court of Appeal and the Trial Division.

40 In particular, in Sidiqi v Kotsios ('Sidiqi'), Beach, Kaye and Osborn JJA confirmed that -

(a) the character of the function of a medical panel means that its opinions on medical questions of fact raised by the questions asked will necessarily be informed by expertise which the Court does not possess and which will potentially govern the relevance and weight which is to be accorded to any particular aspect of the circumstantial evidence;[33]

(b) the nature of the functions of a medical panel means that the Court cannot approach judicial review in the same way it would with respect to the decision of a body exercising an adjudicative function, nor in the way in which it would if the panel did not possess expertise which the Court does not;[34]

(c) it follows that a medical panel is possessed of a broad discretion as to the manner in which it evaluates the facts in a particular case;[35] and

(d) in a 'fundamental sense', it is for the panel to determine what information is sufficient to found an opinion with respect to a medical question.[36]

41 In that context, in Vicinity Centres Pty Ltd v Arik ('Vicinity Centres'), Niall and Macaulay JJA explained that it is the task of medical practitioners to construe and apply the AMA Guides and, accordingly, the process of construction of the AMA Guides 'does not proceed as if the Guides were legislation or a legal text'.[37] In that connection, their Honours stated -

[7] ... the Act requires the Panel to apply the Guides using the members' individual and collective skill and expertise as medical practitioners and that their approach to the Guides is not to be supplanted merely because the court comes to a different view as to how it might be interpreted. It is necessary to go further and show that the methodology is not in accordance with the Guides, being a document intended for application by the medical practitioners.

[10] ... the ultimate legal inquiry is whether the Panel has made an assessment in accordance with the Guides and, as part of that process, whether it understood and applied the Guides in a way that was consistent with the application of a medical text by an expert medical practitioner. As well, it is important to observe that the Panel is not engaged in an adjudicative or arbitral function, but must form its own opinion. Unlike with a statutory text, this may mean that the words legitimately have, and retain, different shades of meaning and in which the choice and application of the various methodologies may involve the application of medical expertise and judgment.[38]

42 In that instance, the Court of Appeal considered competing approaches to the interpretation of Table 40 in chapter 3 of the AMA Guides. Their Honours considered context to point strongly away from the more prescriptive of the approaches proffered, and stated that such an approach -

... would introduce a degree of prescription that does not reflect the nature of the document and its intended audience.[39]

43 Their Honours thereafter confirmed that Table 40 did not require the more prescriptive approach and concluded that the contrary approach had been 'open'. It followed that it had not been shown that the panel had failed to perform its assessment 'in accordance with the Guides'.[40]

44 I have earlier referred to the decision of Forbes J in Scardamaglia,[41] which the plaintiff provided to the Panel together with short further written submissions.

(a) the ASOHNS Guidelines incorporate the AMA Guides in a limited fashion; and

(b) the panel in that matter had erred in failing properly to take account of and consider the issue of tinnitus.

46 On appeal, in Amcor PLC v Scardamaglia ('Amcor'),[42] Beach, McLeish and Macaulay JJA considered chapter 9 of the AMA Guides, as well as the ASOHNS Guidelines, and, in substance, agreed with her Honour's conclusions. In that regard, their Honours stated -

... The reference to the AMA Guides in the ASOHNS Guidelines should not be regarded as mere surplusage to be ignored in the assessment under the Guidelines. The reference is there to enable the expert assessor to consider whether or not the diminution of hearing assessment needs to take account of a diminution of hearing that might not be fully accounted for in a pure tone audiogram.[43]

... the construction we prefer does not involve any duplication in the assessment of diminution of hearing. An expert assessor is given the discretion to add a percentage (up to 5 per cent) for any additional diminution of hearing caused by tinnitus, which diminution is over and above any diminution of hearing that may have been accounted for on the pure tone audiogram.[44]

48 The opinion of the Panel was provided prior to the decision of the Court of Appeal in Amcor. However, nothing turns on the point as the essence of the plaintiff's present contention is that the Panel 'stated the test', but failed to apply it.[45]

49 As I have earlier noted, the Panel was required to answer two medical questions. The presently relevant question is the first, which required that the Panel determine the plaintiff's degree of permanent whole person impairment resulting from the accepted injury.

(a) the plaintiff is recorded as having said that he had 'not been troubled by tinnitus for the last 12 months'; and

(b) the Panel undertook a physical examination and conducted a hearing test.

51 It was not said that the Panel erred in any way in -

(a) recording the history given by the plaintiff;

(b) undertaking the physical examination and conducting a hearing test;

(c) assessing the audiogram;

(d) addressing the relevant requirements of the ASOHNS Guidelines; and/or

(e) calculating a binaural hearing loss of 9.7%.

52 The issue, of course, was the consideration by the Panel of the issue of tinnitus.

53 In that connection, it was essentially acknowledged that the Panel had referred correctly to -

(a) the history relevantly given by the plaintiff;

(b) several parts of the AMA Guides, including the passage containing what was described as 'the test';

(c) point 7a of the ASOHNS Guidelines; and

(d) the decision of Forbes J in Scardamaglia.[46]

54 That said, counsel for the plaintiff suggested that the Panel might have used the term 'impairment' inappositely;[47] although nothing of substance was said to turn on it and, for my part, I would not accept that the Panel could be said to have erred in having done so.

55 As earlier noted, the error of the Panel was said to be in the underlined words appearing in the following passage extracted from the Panel's reasons -

... The Panel noted that the worker described no difficulty with impairment when the volume was elevated or in quiet situations (where the tinnitus would still be present) and furthermore noted its audiological testing showed 90% to 95% (normal) speech discrimination scores once the effects of hearing loss had been removed by appropriate amplification. The Panel concluded that there was an impairment percentage of 0% for the effect of tinnitus as the condition does not interfere with the function of the ear and does not impair speech discrimination.[48]

56 The plaintiff submitted that the Panel had, in effect, breached or disregarded what was described as 'the test', namely the phrase '[t]innitus in the presence of unilateral or bilateral hearing loss ...', as well as the subsequent sentence '[p]rosthetic devices must not be used during the evaluation of hearing sensitivity'.[49]

57 The present issue was described as one of interpretation of the AMA Guides.

58 In respect of an issue of construction of the AMA Guides, in Vicinity Centres, Niall and Macaulay JJA considered, among other things, context. It follows that it is presently convenient and appropriate to do the same.

59 In that regard, chapter 9 of the AMA Guides is entitled 'Ear, Nose, Throat, and Related Structures'.

60 Chapter 9 commences by identifying its purpose -

The purpose of this chapter is to provide criteria for use in evaluating permanent impairments resulting from the principal dysfunctions of the ear, nose, throat, and related structures. Although these structures have multiple functions, some of which are closely allied, permanent impairments of the structures usually result from clinically established deviations from normal in one or more of the following functions: (1) hearing; (2) equilibrium; (3) respiration; (4) mastication, including temporomandibular joint function; (5) olfaction and taste; (6) speech; and (7) facial features and their movements.

61 The text thereafter addresses other aspects, including the requirement that the reader 'peruse Chapters 1 and 2 and the Glossary'.

62 Section 9.1 thereafter appears and is entitled 'The Ear'.

63 Section 9.1 commences by identifying the various components of the ear, and then states -

The functions of the ear are hearing and equilibrium, which are considered in the following paragraphs. The criteria for evaluating hearing impairment are relatively specific. In contrast, the criteria for evaluating disturbances of equilibrium are more general.

Disturbances of the ear, such as chronic otorrhea, otalgia, and tinnitus, are not measurable. Therefore, the physician should estimate an impairment percentage based on the severity of those conditions and the degree to which they interfere with the functions of the ear, and a percentage that is consistent with established values.

Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage up to 5% may be added to the impairment for hearing loss.[50]

64 The underlined words are, of course, what counsel for the plaintiff described as 'the test'.

65 Following that passage, section 9.1a appears, entitled 'Hearing'.

66 Section 9.1a identifies and describes several 'criteria' to be used in evaluating an individual's hearing.

67 The first stated criterion is '[p]ermanent hearing impairment', which is described as follows -

... This is reduced hearing sensitivity that is outside the range of normal. Hearing should be evaluated after maximum rehabilitation has been achieved and when the impairment is nonprogressive.

Prosthetic devices must not be used during the evaluation of hearing sensitivity. The reason for this dictum is that the use of such devices might give a false impression of patients' sensitivities and distort the need to take hearing conservation or other measures that might be indicated.

68 As noted, the underlined sentence was relied upon by counsel for the plaintiff as an adjunct to his central contention concerning the 'test'.

(a) 'Intensity' - which is measured in decibels;

(b) 'Hearing threshold level for pure tones' - which is 'defined as the number of decibels above a standard audiometric zero level for a given frequency at which the listener's threshold of hearing lies'; and

(c) 'Evaluation of binaural hearing impairment' - which is 'derived from the pure-tone audiogram and is always based on the functioning of both ears'.

70 Section 9.1b thereafter appears and is entitled 'Objective Techniques for Determining Hearing Impairments'.

71 Section 9.1b states a sequence of 'steps' to be taken in determining hearing impairments, including -

(a) testing each ear 'separately with a pure-tone audiometer' and recording the hearing levels at particular frequencies;

(b) certain 'rules' which apply to 'extreme values';

(c) totalling the 'four decibel hearing levels for each ear separately'; and

(d) consulting tables in order to determine the relevant hearing impairment and, in turn, the impairment of the whole person.

72 Section 9.1c then appears and is entitled 'Equilibrium'.

73 In context, it is evident that the relevant sections of chapter 9 of the AMA Guides -

(a) identify two functions of the ear that may fall for assessment, namely hearing and equilibrium; and

(b) state specific 'criteria' and 'steps' in connection with assessing hearing impairment.

(a) the stated 'criteria' for assessing impairment of hearing contemplate a 'pure-tone audiogram', including assessment of a 'threshold of hearing', which is 'the number of decibels above a standard audiometric zero level for a given frequency'; and

(b) the required 'steps' include recording 'four decibel hearing levels for each ear separately'.

75 It follows that the testing of hearing impairment, as contemplated by the AMA Guides, specifically contemplates the use of amplification.

76 In that context, it would appear to be rather incongruous if the combination of the phrase and sentence relied upon by counsel for the plaintiff should be taken to command that claimed tinnitus could not be considered by reference to features of the testing which the relevant parts of the AMA Guides otherwise command be performed.

77 In my view, the wider context tells against such a construction, as does a consideration of the phrase and sentence in their more immediate context.

78 In that regard, I have noted that the so called 'test' falls within the following broader passage in section 9.1 of the AMA Guides -

Disturbances of the ear, such as chronic otorrhea, otalgia, and tinnitus, are not measurable. Therefore, the physician should estimate an impairment percentage based on the severity of those conditions and the degree to which they interfere with the functions of the ear, and a percentage that is consistent with established values.

Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage up to 5% may be added to the impairment for hearing loss.[51]

(a) the above passage appears after reference to the two 'functions' of the ear and the general character of the 'criteria' for assessing each of them;

(b) the passage is directed to 'disturbances of the ear', and plainly, in context, the significance of any such 'disturbances' when presented for consideration by a physician (or panel) when evaluating either or both of the earlier identified functions of 'hearing' and 'equilibrium';

(c) particular disturbances are identified, namely 'chronic otorrhea' (ear discharge), 'otalgia' (ear pain) and tinnitus;

(d) all such disturbances are specifically identified as 'not measurable';

(e) accordingly, the physician (or panel) is required to 'estimate an impairment percentage' (if such a disturbance is presented);

(f) that estimate is to be based upon the severity of the condition and the degree to which it interferes with the functions of the ear (ie hearing and/or equilibrium);

(g) any such estimated percentage must be 'consistent with established values'; and

(h) the so called 'test' then appears, albeit as an opening phrase in respect of a more complete proposition.

80 In the context described, I cannot accept that section 9.1 of the AMA Guides states any such 'test' with the consequence that an assessing physician or panel may not refer to the results of hearing testing involving amplification. In particular -

(a) the contention sits uncomfortably with surrounding context;

(b) the immediately preceding paragraph specifies how a physician (or panel) should approach estimation of a percentage of impairment in respect of any 'disturbance of the ear', including tinnitus;

(c) the language deployed in the paragraph in which the so called 'test' appears is not suggestive of any particular prohibition upon the manner in which a physician (or panel) might perform testing, or might otherwise estimate the relevant impairment percentage;

(d) by contrast, elsewhere in chapter 9, where it is evidently intended to prescribe certain 'criteria' and 'steps', that is specifically done; and

(e) the paragraph concerned does no more than state a proposition relevant to any consideration of the effect of tinnitus when assessing impairment of hearing (ie that it 'may impair speech discrimination') and 'therefore' that it may be appropriate to add a percentage of up to 5% to the impairment percentage for hearing loss.

(a) as I have earlier noted, the Panel referred, without error, to the plaintiff's relevant history, the AMA Guides, the ASOHNS Guidelines and Scardamaglia;

(b) having done so, the Panel relevantly stated -

The Panel noted that the worker described no difficulty with impairment when the volume was elevated or in quiet situations (where the tinnitus would still be present) and furthermore noted its audiological testing showed 90% to 95% (normal) speech discrimination scores once the effects of hearing loss had been removed by appropriate amplification. The Panel concluded that there was an impairment percentage of 0% for the effect of tinnitus as the condition does not interfere with the function of the ear and does not impair speech discrimination.

(c) that statement was evidently based partly on the plaintiff's history to the Panel and partly on a consideration by the Panel of features evident in its examination and testing;

(d) in that regard, the Panel seems to have considered, correctly, the issues of both 'the function of the ear' and 'speech discrimination';

(e) the Panel evidently considered the results of its testing to be relevant to its consideration of the issue of speech discrimination;

(f) I could not say that the Panel was in error in considering the character of the speech discrimination scores obtained on testing to be relevant to the estimate which it was required to make - indeed, in my view, it appears most likely that the Panel did so correctly;

(g) in that regard, it is in the nature of such a panel that its consideration of the relevance and weight to be afforded to facts and circumstances is informed by an expertise which, of course, the Court does not possess;[52] and

(h) in any event, to be clear, I do not consider that section 9.1 of the AMA Guides poses the so called 'test' that would prohibit the Panel from having regard to the results of any testing involving amplification.

82 The plaintiff's reference to and reliance upon a sentence appearing in section 9.1a of the AMA Guides can be addressed more briefly.

83 As I have noted, that sentence appears in respect of the stated criterion 'permanent hearing impairment' and, particularly, as follows -

Prosthetic devices must not be used during the evaluation of hearing sensitivity. The reason for this dictum is that the use of such devices might give a false impression of patients' sensitivities and distort the need to take hearing conservation or other measures that might be indicated.[53]

84 In my view, the underlined sentence should be read as a direction in respect of what it says, and emphasises, and for the reason which it identifies. In particular -

(a) the stated prohibition is upon the use of 'prosthetic devices', not amplification;

(b) the reason given - that 'such devices' might give a false impression - suggests that the concern relates to the properties of 'such devices', rather than to amplification in the broad; and

(c) in context, if it had been intended to prohibit amplification in the broad, even in respect of certain tests, surely that would have been said directly - rather than obliquely and by reference to certain assumed properties of all 'prosthetic devices'.

85 It follows, in my view, that the sentence relied upon by the plaintiff in section 9.1a should lead to no different view concerning the relevant effect of chapter 9 of the AMA Guides.[54]

86 I should, perhaps, add that I do not regard any of the above as displaced or otherwise relevantly affected by counsel's relatively brief submission concerning the asserted characteristics of the results of the speech audiometry testing undertaken by the Panel.[55] In that regard -

(a) what the Panel made of those results, in its expert opinion, was a matter for it; and

(b) I do not regard the matters to which counsel sought to draw attention to show that the Panel had erred either in considering those results or in estimating what, if any, relevance those results might have had to the estimation it was required to make in respect of tinnitus.

87 In any event, as I have earlier noted, counsel fairly acknowledged that the submission was not 'really the main point'.[56]

88 In light of the above, in my view, the plaintiff's remaining ground must be rejected.

89 I should, perhaps, say that I am conscious that this means that the plaintiff receives no impairment benefit for the employment related diminution in his hearing. However -

(a) that is a consequence of a scheme in which such a benefit may only be assessed in respect of whole person impairment of 10% or more;

(b) as I have noted, it is not said that the Panel's assessment of the plaintiff's hearing impairment is erroneous;

(c) in my view, for the reasons outlined above, no error was made by the Panel in determining that there was 'an impairment percentage of 0% for the effect of tinnitus';[57] and

(d) it does not seem erroneous of the Panel to have made no allowance for tinnitus, at least intuitively, when (whether as a consequence of the use of hearing aids or not) the plaintiff had 'a past history' of tinnitus and, at the time of examination by the Panel, evidently reported that he was 'no longer troubled by this affliction'.

90 As I have indicated, the plaintiff's remaining ground of review must be rejected. It follows that the proceeding must be dismissed.

91 I will hear from the parties concerning the form of final orders.

[10] [2023] VSC 114 ('Scardamaglia').

[15] JCB (n 1) 32 (emphasis in original).

[18] Although nothing presently turns upon it, I should not be thought to be approbating the practice of framing and presenting 'grounds' of judicial review in an omnibus style.

[19] Cf R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13.

[20] This contention included a submission that the Panel had erroneously failed to give proper reasons as to why its opinion had differed to that of Mr Fitzsimmons: see, JCB (n 1) 15 [25]-[27].

[22] I took it that the related contention that the Panel had erroneously failed to give proper reasons as to why its opinion had differed to that of Mr Fitzsimmons was also not pressed: no oral argument was directed to that contention.

[32] [2013] HCA 43; (2013) 252 CLR 480, [47]. See also [55].

[33] [2021] VSCA 187 ('Sidiqi'), [34].

[37] [2023] VSCA 295 ('Vicinity Centres'), [3]-[4].

[38] Vicinity Centres (n 37) [7], [10] (citations omitted).

[42] [2023] VSCA 290 ('Amcor'), [29].

[44] Ibid [53](1) (emphasis in original).

[52] Sidiqi (n 33) [34], [39], [41].

[54] I should perhaps add, for completeness, that it was common ground that the Panel had not used any 'prosthetic devices' in its testing. In the circumstances, it is unnecessary to determine the first defendant's further submission concerning whether section 9.1a bore any present relevance: see, JCB (n 1) 22-23 [24].