Van Loggem v Return to Work Corporation of South Australia [2025] SAET 47

Van Loggem v Return to Work Corporation of South Australia [2025] SAET 47 | Case summary | Zoe

[43]

By letter dated 14 July 2023, Employers Mutual SA Pty Ltd (EML), as nominated claims agent for the Return to Work Corporation of South Australia (the Corporation), informed the applicant (Ms Van Loggem) that her claim for medical expenses for noise induced hearing loss and tinnitus had been accepted by reference to a deemed date of injury of 30 June 2014.[1] EML was satisfied that Ms Van Loggem was suffering from hearing loss and tinnitus arising from employment and that her employment with Wormald Canvas was the last employment where she was exposed to noise capable of causing noise induced hearing loss.
Ms Van Loggem was further advised that arrangements would be made to have her hearing loss assessed and that the assessment would determine whether she would be eligible for a lump sum payment.[2]
By letter dated 12 January 2024, EML informed Ms Van Loggem of its determination that she was not entitled to a lump sum payment as a result of her noise induced hearing loss and tinnitus. That was expressed to be on the basis of the content of a report of Dr Peter Harding Corlette, ear nose and throat surgeon, dated 15 December 2023 which EML understood as confirming that Ms Van Loggem's hearing loss was stable and permanent but resulted in a 0% whole person impairment (WPI).[3]
On 26 February 2024, Ms Van Loggem filed an application to have that determination reviewed by the Tribunal.[4] In that application for review, Ms Van Loggem referred to an earlier report of Dr Corlette dated 5 October 2023 and asserted that EML had interfered with the WPI assessment by unilaterally communicating with Dr Corlette thereafter.
In the report dated 30 October 2023, Dr Corlette assessed Ms Van Loggem as having been left with a 10.4 % binaural hearing loss which he attributed at the time to noise induced hearing loss and which translated to a 5% WPI.
In the course of the trial, the reasoning adopted by Dr Corlette in his report dated 30 October 2023 and the reasoning which led to a change in assessment of WPI to a 0% WPI in the subsequent report dated 15 December 2023, has been explored in some detail and especially when questioned by Mr Roberts KC of counsel for Ms Van Loggem.
For the reasons that follow, I have such a level of concern in relation to aspects of the evidence given by Dr Corlette, that I have determined it appropriate for the Tribunal to exercise its powers for some medical questions to be addressed by an independent medical adviser (IMA) in accordance with Part 8 of the Return to Work Act 2014 (the RTW Act).
Written reasons are being provided, although the matter is part heard at trial, in circumstances of a practice of the Tribunal to do so and a Full Bench of this Tribunal having held in Rogers v Return to Work Corporation of South Australia (Thiess Pty Ltd) (Rogers),[5] that such a referral may constitute a "decision" as defined in s 3 of the South Australian Employment Tribunal Act 2014 (the SAET Act). I note, however, that the Full Bench in Rogers entertained doubt as to whether, ordinarily, reasons for an evidentiary ruling would constitute a decision which may be the subject of an appeal.[6] It was in circumstances of a finding that the learned trial judge had denied procedural fairness that the Full Bench concluded that its jurisdiction was properly invoked.[7] The Full Bench addressed the difficulties that can arise in a trial judge addressing evidence received where further evidence is to be obtained by referral to an IMA. There are other good reasons as to why it is desirable to approach referrals to an IMA, mid-trial, and the reasons for the referral, as a process of obtaining further evidence without finally determining the rights of the parties. Otherwise, there could be fragmentation of trials by appeals against such rulings which was stated by Gleeson CJ in Rich v ASIC[8] to be inappropriate other than in the most exceptional cases.[9] Moreover, where there are such rulings, ordinarily, there is only one judgment of the Court that is appealed from and all grounds taken by a party in the course of a trial are open to him.[10]
Notwithstanding the observations set out in paragraph 8 above, given the extent of the submissions of the parties, detailed reasons for the referral to an IMA follow. These reasons are by reference to the evidence received to date. Aspects of the reasons may need to be reviewed depending upon the content of the report of the IMA and further evidence that may be received, noting that s 124 of the RTW Act provides that an IMA is competent to give evidence as to any matter in a report furnished by the IMA.

[50]

Please be advised that

Ms. Van Loggem is only to be compensated for that portion of the impairment which is directly attributable to the relevant work incident. Where an impairment has also been contributed to by an unrelated injury or cause, the portion of impairment attributable to same must be deducted so as to ensure that the impairment assessment relates solely to that resulting from the work injury.

The Return to Work legislation requires that where there is any pre-existing or unrelated injury(ies), whether or not work-related, that has resulted in the worker suffering impairment before or after the date of injury, these must be deducted or disregarded from the impairment.

The legislation does not mandate that an assessment of an unrelated injury be subject to an assessment under the Guidelines in the same way as the work injury must be assessed. You must use your best efforts to estimate the degree of impairment contributed to by the unrelated injury or cause.

The Return to Work legislation requires that where there is any pre-existing or unrelated injury(ies), whether or not work-related, that has resulted in a worker suffering impairment before or after the date of injury, these must be assessed under the Guidelines and then deducted from the impairment. If you are of the opinion that Ms Van Loggem has any other pre-existing or unrelated injury(ies), that has resulted in the worker suffering impairment before or after the date of injury provided in the table above, the impairment for the pre-existing condition should also be deducted from the impairment from the compensable injury (as per 1.23 of the Impairment Assessment Guidelines).

Audiogram review and significant deterioration hearing loss since ceasing employment in which the person was last exposed to noise capable of causing noise induced hearing loss (sic)

It is noted that along with your WPI request letter, you were provided with multiple copies of audiograms undertaken prior to your assessment.

...

EML are now in receipt of the attached correspondence from Audika, which confirms the qualifications of the tester and provides the calibration certification for the Diagnostic Audiometer used during the assessment and the ambient noise level certificates for the clinic. [emphasis in original]

[55]

By reference to that reasoning, Dr Corlette then assessed 18% BHI by way of total hearing impairment but only 2.9% BHI as being attributable to noise induced hearing loss. He added a loading of 1% BHI for what he diagnosed as severe tinnitus. In doing so, Dr Corlette referred to Chapter 9.11 of the IAG which provides that in cases of BHI and severe tinnitus, up to 5% may be added to the work related BHI for severe tinnitus caused by a work injury. The adjusted BHI from noise induced hearing loss and related tinnitus was 3.9%. It was not in dispute between the parties that, by reference to Table 9.2 of the IAG, that translates to a 0% WPI.
Dr Corlette was questioned by Mr Roberts as to his understanding of the methodology to be applied under the IAG in the context of the directions that were given to him by EML.
In answering the questions put to him, Dr Corlette stated that he was directed to determine impairment by reference to the audiogram that was performed on 20 June 2014.[18] Dr Corlette reviewed all of the audiograms including that undertaken by him on the day of the assessment. He explained that was for the purpose of determining the hearing level on that day.[19] Dr Corlette added that he understood that he was being directed to assess Ms Van Loggem's hearing at the time of the assessment.[20]
Dr Corlette expressed some familiarity with ss 22(2), (7) and (8) of the RTW Act[21] and he ultimately expressed a familiarity with s 188(2) of the RTW Act.[22] Dr Corlette also expressed an understanding of a difference in the assessment of permanent impairment from noise induced hearing loss in circumstances of a retirement on the ground of ill health or age in comparison to those who work beyond retirement age.[23] Dr Corlette stated that he understood in circumstances of a person who has not retired from employment on account of age or ill health that the whole of the noise induced hearing loss will have been taken to have occurred immediately before notice of injury was given.[24] He accepted that in Ms Van Loggem's circumstances knowing that the notice of injury was given shortly prior to his assessment would have been information relevant to the assessment undertaken.[25]
Dr Corlette accepted that the hearing loss at the time of his assessment in this case was at a moderate to moderately severe level.[26] In comparison, Dr Corlette accepted that the 2014 audiogram revealed a mild level of hearing loss.[27] Dr Corlette also accepted that the series of audiograms, over the years, indicated a progression of hearing loss.[28] Dr Corlette accepted the 2017 audiogram as being reliable and that there was a progression of hearing loss between 3000Hz and 4000Hz between that date and when Dr Corlette performed his audiogram of Ms Van Loggem's hearing.[29]
In his oral evidence, Dr Corlette confirmed the understanding expressed in his medical reports that, ordinarily, assessments of permanent impairment are to be undertaken by reference to audiograms prepared at the time of that assessment but that an earlier audiogram may form the basis of the assessment of permanent impairment if there are compelling or cogent circumstances to disregard the audiogram at the time of the consultation. Dr Corlette explained that understanding as being by reference to a "tribunal finding".[30] Dr Corlette referred to the case of "Stewart" which I understood to be a reference to the decision of Kelly DPJ in Stewart v Return to Work SA.[31]
Dr Corlette was asked about how he came to assess 1% BHI for tinnitus where the relevant range in the IAG is between 1% and 5%. Dr Corlette acknowledged that the first step in the process is to be satisfied that the degree of tinnitus experienced is severe. He referred to that as being a very subjective assessment.[32] Dr Corlette confirmed that he had regard to the examples set out in the IAG.[33] Dr Corlette referred to the conversation that he had with Ms Van Loggem and the judgement he formed at the time was that the tinnitus, although appropriately classified as severe, was at the lower end of the severe range. He referred to a guideline for 2% BHI and that he assessed Ms Van Loggem as being within the range of between 0% and 2%. He was not satisfied that the tinnitus was severe enough to warrant a grading of 2 but was also satisfied that the tinnitus was not negligible within the relevant range and accordingly settled upon an allowance of 1% BHI for the tinnitus.[34]
Dr Corlette was questioned as to his reliance upon information and directions from EML following his first report which caused him to significantly change his assessment of permanent impairment in his second report. His attention was drawn to the statement by EML that following the first report it had received "attached" correspondence from Audika dated 15 November 2023. Dr Corlette was pressed as to whether he had in fact been provided with the correspondence from Audika referred to by EML. That was understandable as the document review section in the second report did not identify correspondence from Audika, as referred to by EML, as having been reviewed by him. Dr Corlette was initially unable to confirm that he had previously perused the letter from Audika and did not recall the letter at the time that he gave his oral evidence.[35] Then, after Dr Corlette was taken to a copy of the letter of Audika dated 15 November 2023 and asked again whether he had seen the letter before. He answered initially "probably" but when further pressed stated:

[59]

Dr Corlette accepted that when EML wrote to him after his first report it asked that he provide his clinical reasoning for the significant deterioration in hearing since 2014. He accepted that he did not address that matter in his second report.[38]
Dr Corlette explained that in his second report he relied primarily upon the 2017 audiogram because he was ultimately satisfied that it was a reliable audiogram and it was the closest accurate audiogram to the time of retirement.[39] He accepted a proposition that he relied upon an understanding that Ms Van Loggem had retired due to either ill health or her age and on that basis the accurate audiogram closest in time to that date would be the relevant audiogram.[40]
Mr Harms of counsel for the Corporation, explored with Dr Corlette another possible basis for the 2017 audiogram being a more accurate measure of noise induced hearing loss from exposure to noise related to employment. Dr Corlette accepted a proposition that noise induced hearing loss does not progress if there is no further exposure to noise.[41] Accordingly, it is appropriate to rely upon an audiogram closest to the date of retirement because that reflects the hearing of the person at that time.[42] Further, he accepted a proposition that if later audiograms show a deterioration in the hearing, that is a result of some other reason and if due to noise, an exposure to noise in a non-occupational setting.[43]
Dr Corlette was then taken to the information set out in the letter of Audika dated 15 November 2023 and he was asked whether he had been provided that information and that caused a change in his view as to the reliability of the 2017 audiogram. Dr Corlette agreed that occurred.[44]
In re-examination, Mr Roberts explored further with Dr Corlette whether an exposure to noise can produce hearing loss beyond the date of the exposure. He was asked about his knowledge of an article titled "Guidelines for Diagnosing and Quantifying Noise-Induced Hearing Loss" by Moore et al.[45] The essence of what was put to Dr Corlette was that the authors of the article had concluded that there is evidence that, in certain cases, an exposure to noise can result in a hearing loss which progresses beyond the date of the exposure. Dr Corlette acknowledged that he had seen the article on the morning of, and before he gave, evidence. He gave varying responses to whether he had seen the article previously. He initially stated that he had previously seen it briefly,[46] but shortly thereafter stated that he had no recollection of seeing it before.[47]
When asked if he had any recollection of having referred to this article in a report that he produced in March 2024 he replied "no".[48] Dr Corlette was taken through the article and the references to studies including data from humans exposed to noise during military service which gave rise to a series of hypotheses. In particular, for frequencies where noise induced hearing loss at the end of noise exposure is mild, subsequent progression of hearing loss may be accelerated. In contrast, for frequencies where noise induced hearing loss is moderate or severe, the subsequent progression of hearing loss is either unaffected or slowed. That hypothesis was put to Dr Corlette and he accepted the hypothesis as possible.[49]
Dr Corlette stated his understanding that the authors of the article were postulating a theory that where outer hair cells of persons in military service were damaged during the service may not have had that damage identified upon audiogram at the time but rendered the individual more susceptible later. He accepted that as being a theory.[50]
Dr Corlette provided varying responses to whether, by reference to that theory, it could be reasonably postulated in this case that the exposure to noise until the retirement of Ms Van Loggem could have resulted in a progression of hearing loss beyond that date.
The trial was adjourned to allow Ms Van Loggem to obtain an order that would allow her to use a report prepared by Dr Corlette in other proceedings involving another worker, in the current proceedings. The relevant order was obtained, and Dr Corlette was then recalled for further evidence.[51]
The further examination of Dr Corlette established that he provided a WPI assessment report dated 29 April 2024 relating to another worker. In that case, he subsequently received an email from EML on 8 May 2024 requesting that he review his initial assessment.
Dr Corlette's response included the following relevant statements:

[74]

Ms Van Loggem, through her counsel Mr Roberts, addressed in some detail the legal principles relating to the assessment of permanent impairment in relation to a work injury of noise induced hearing loss. She submitted that it is important to recognise the different roles played by s 22 and s 58 of the RTW Act and how those provisions interact with s 188(2) and (3). Given the conclusion that I have reached that there should be a referral to an IMA to obtain further evidence, I will address this aspect of the submissions of Ms Van Loggem at this time only to the extent necessary to understand the reason for the referral.
Ms Van Loggem noted that within s 22 of the RTW Act are provisions concerning how the assessment process is to be performed and how deductions are required to be made. She drew particular attention to s 22(7) and s 22(8).
Reference was then made to the judgment of the Full Court in Paschalis v Return to Work Corporation of South Australia.[76] Ms Van Loggem submitted that the difference between s 22(8)(b) and s 22(8)(g) is that the former is limited in application to injuries or causes that are relevantly unrelated to the work injury, whereas the latter applies even where a previous injury was, or the previous injuries are, related to the work injury in some way. It was noted that whilst the distinction exists, the plurality in Paschalis also recognised that both provisions ultimately had the same intention on limiting the compensation paid to the impairment arising from the work injury.
Ms Van Loggem submitted that the regime of s 22 does not, however, apply in the same way when assessing claims for lump sum compensation related to noise induced hearing loss, because of the application of s 188. She submitted that s 188(2) and (3) constitute an exhaustive code in relation to the establishment of a work injury for noise induced hearing loss and the assessment of permanent impairment arising from that injury.
It was submitted that s 188(2) creates two statutory presumptions. The first is that, where there is a claim for noise induced hearing loss, the whole of the loss is taken to have occurred immediately before the notice of injury is given. She submitted that means the whole of the WPI resulting from noise induced hearing loss. The second presumption is that the whole of the loss arose out of the employment in which the worker was last exposed to noise capable of causing noise induced hearing loss. Ms Van Loggem observed that the first presumption is irrebuttable but the second presumption is rebuttable. She submitted it follows that there can be no portion of the impairment that is due to a previous injury or condition that is captured either by s 22(8)(b) or s 22(8)(g) of the RTW Act. She further submitted that s 188, being a specific provision concerning noise induced hearing loss, prevails to the extent of any inconsistency with s 22 and operates as an exception to the otherwise dominant purpose of s 22.
It was submitted that it follows that there can be no scope for considering and deducting impairment from noise induced hearing loss following retirement but prior to the assessment of whole person impairment because the whole of the impairment resulting from the noise induced hearing loss occurred as a single event immediately before notice of injury was given.
Ms Van Loggem submitted that there was not a basis upon which the Court could rely upon the opinion expressed by Dr Corlette in his second report which was based upon the 2017 audiogram prepared by Audika. Firstly, she submitted that the Court could not be satisfied that Dr Corlette saw the letter from Audika dated 15 November 2023. Secondly, the respondent had not proven that the audiogram, as a matter of fact, complied with the requirements of the IAG. It was submitted that someone from Audika should have been called by the respondent to prove that the audiogram recorded results were reliable. She submitted that it followed that there was no admissible opinion from Dr Corlette based upon his assumed fact that the audiogram was reliable. The letter was contained in the trial book which was tendered by Ms Van Loggem's counsel at the commencement of the trial. As I understood the submission, whilst the letter was received in evidence and parts of it were put to Dr Corlette when he gave oral evidence, he assumed the correctness of the letter, as reported to him by EML. Mr Roberts referred to the author of the letter stating that he used a calibrated audiometer but there was no confirmation of certification of a calibrated audiometer having been used. As I understood the submission, the letter is consistent with the author having assumed that he used a calibrated audiometer. Further, it was submitted the letter does not explain what is meant by the audiometer having been calibrated. This is in the context of Chapter 9.8 of the IAG stating that the audiometer is required to be calibrated according to Australian Standard AS IEC 60645.1-2002.
Mr Roberts was also critical of the directions that were given to Dr Corlette which he contended were misguided as to the legal principles to be applied and in particular, that there was a failure to properly direct Dr Corlette in accordance with s 188 of the RTW Act and in the manner set out earlier in these reasons.
Mr Roberts submitted that the Court should have concern as to the reliability of the evidence given by Dr Corlette on the topic of whether, in the circumstances of Ms Van Loggem, the exposure to noise at work could have affected her experience of tinnitus later and whether it could have affected the assessment of hearing loss beyond the date of the exposure. Mr Roberts referred to Dr Corlette not having a recollection of the Moore et al article at the time that he first gave evidence and then conceding on the second occasion that not only had he previously been aware of the article, he had expressed opinion in relation to another worker by reference to it.
Mr Roberts was critical of the process adopted in the creation of the medical reports.
Ms Van Loggem submitted the Court should now consider three possibilities. The first is that the process for the assessment of permanent impairment in this case has so miscarried that it cannot be characterised as an assessment in accordance with s 22 and that process needs to commence again. The second is that the Court exercise the power conferred to it under Chapter 8 of the RTW Act and arrange for an IMA to undertake an assessment of WPI with respect to both noise induced hearing loss and tinnitus. The third is to accept Dr Corlette's assessment of noise induced hearing loss and tinnitus, as set out in his first report and to seek a report of an IMA in relation to the issue of whether the exposure to noise in employment may have resulted in an acceleration of degenerative hearing loss and tinnitus.

[75]

Through its counsel, Mr Harms, the Corporation urged a different construction of s 188 of the RTW Act. It submitted that s 188 does not preclude the assessor from needing to identify the extent of any employment caused noise induced hearing loss. The function of s 188 is that where the assessor concludes that there is a component of noise induced hearing loss from employment, then the deeming provisions apply with respect to that loss. Section 22 of the RTW Act, as the dominant provision relating to the assessment of permanent impairment from a work injury, requires the assessor in all cases, including cases of noise induced hearing loss, to determine the percentage of WPI that arises from the work injury. In doing so, non-work injury hearing loss is to be excluded so that the objective of a worker being compensated only for the impairment attributable to the work injury, is achieved.
The Corporation acknowledged that there is a complex issue of the extent to which s 188 may impact upon the application of s 22(8)(g) relating to a pre-existing injury in cases of noise induced hearing loss, but that no such difficulty arises with respect to separating impairment arising from other causes in accordance with s 22(8)(b) of the RTW Act and that is the issue raised in this case.
The Corporation submitted that any hearing loss experienced by Ms Van Loggem after her retirement and which is not proven to have arisen from the work injury, must be deducted from the assessment of permanent impairment by reference to the audiogram performed by Dr Corlette on the day of the examination of Ms Van Loggem. The Corporation maintained that any deterioration in hearing loss in this case, after the date of retirement, is not the result of the work injury and is thereby to be excluded. It also submitted that must follow irrespective of the reason as to why Ms Van Loggem retired from employment.
Put another way, I understand the Corporation to have submitted that the effect of s 188 is to deem the whole of the noise induced hearing loss from the work injury to have been sustained at the time notice of injury was given, but not the whole of the hearing loss if there is a non-work injury component.
The Corporation submitted that the IAG do not require proof to any particular standard of historical but relevant medical evidence and that extends to audiograms. The Corporation observed that Dr Corlette was not questioned by Mr Roberts as to whether the 2017 audiogram, performed by Audika, was accurate. The Corporation drew a distinction between some earlier decisions of the Tribunal which criticised the Corporation in writing to an assessor who had provided a report pursuant to s 22 of the RTW Act, and plainly with a view to changing the assessment of WPI, and this case where Dr Corlette expressed concerns in his first report as to the reliability of the 2017 audiogram and further evidence was then obtained by EML which indicated to it that the 2017 audiogram was reliable and it was thereby appropriate to ask whether the new information gave rise to a different assessment. The Corporation acknowledged that there is a basis for the Court to be concerned as to the extent to which the reports in this case were prepared by Dr Corlette. It submitted that the relevant approach, in accordance with the decision of Gilchrist DPJ in Abraham v Return to Work SA,[77] and cited with approval by the plurality in Paschalis, is that where there is sufficient doubt as to whether the permanent impairment assessment report complies with the requirements of the IAG and for admissibility in evidence, then the Tribunal in court session may exercise the power conferred to it under Part 8 of the RTW Act, and refer questions to an IMA.
The Corporation submitted that, in such circumstances, the appropriate course of action is to refer Ms Van Loggem's assessment of WPI to an IMA for it to be undertaken afresh. It submitted that a decision could not be made to the effect that the process under s 22 of the RTW Act be recommenced, unless the Tribunal made a finding of an error of law on the part of Dr Corlette to the extent that he failed to discharge the function that was to be exercised by him.
The Corporation submitted that there is a good reason not to be satisfied with the evidence that was given by Dr Corlette. Reference was made to the inconsistency in the evidence upon the topic of whether exposure to noise in employment can give rise to a further hearing loss beyond the date of that exposure. Mr Harms referred to Dr Corlette's evidence on the first occasion to the effect that there could be no such progression but had given a contrary view in a medical report relating to another worker and the Corporation submitted that the degree of inconsistency on that topic was such Dr Corlette's evidence is not a reliable basis for findings and to allow the Court to conclude the hearing of the application for review.

[80]

In Makita, Heydon J also referred to the judgment of Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer")[81] as to the duties and responsibilities of expert witnesses in civil cases. The first such duty expressed is that the expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An issue that arises in this case is the extent to which the expert opinion, as set out in the reports of Dr Corlette, amounts to the independent product of Dr Corlette. The evidence of the practice adopted by him and PIA Consulting for the creation of expert reports does give rise to concern. As noted by Heydon J in Makita, that the expert opinion is to be based upon the expert's specialised knowledge requires the opinion to be at least substantially based upon that knowledge. The evidence of Dr Corlette as to the procedure adopted for the preparation of an initial report following an examination of a patient raises a question as to the extent to which the report generated constitutes his expert opinion. He accepted that it is the secretarial staff, possibly in consultation with others, possibly legal advisers, that generate a report which is intended to be based upon the data entered into the computer by Dr Corlette at the time of the consultation. Such reports may contain expressions of opinion. Supplementary reports may be prepared in draft from without any prior input from Dr Corlette.
Dr Corlette did demonstrate, at a general level commensurate with his training and experience, a reasonable understanding of the purpose of ss 22(2), (7) and (8) and s 188(2) of the RTW Act and of the relevant chapters of the IAG. However, the extent to which that knowledge was applied, in this case, is dependent upon the reliability of his evidence as to general practice that when the report, prepared by staff of PIA Consulting is received, it is duly considered by him and approved if he considers it to be correct, or any instructions given by him for the report to be modified, are carried out. Whether any modifications are carried out may depend upon the staff of PIA because they have the ability to place Dr Corlette's electronic signature upon the report and send it to the requestor.
Dr Corlette was clearly impressed by the knowledge by the staff of PIA Consulting of the content of the IAG, and the quality of the reports typed by the secretarial staff and potentially with the assistance of advisors within PIA Consulting. However, that, in itself, can give rise to the possibility of a lack of scrutiny of the draft report by Dr Corlette.
There are at least four reasons as to why some of the evidence given by Dr Corlette gives rise to concern in this case. Firstly, there was a variability in answers given as to whether he had received and considered the letter from Audika dated 15 November 2023. Secondly, when he initially gave evidence, he had no recollection of having previously relied, only months earlier, upon the article by Moore et al in a report relating to another worker. Thirdly, there was the inconsistency in the evidence given at first instance compared to the evidence upon further examination in relation to the use of the article and the extent to which exposure to noise may affect an experience of tinnitus and noise induced hearing loss after the exposure. That is especially in cases of exposure to noise causing, at that time, a mild level of noise induced hearing loss. Fourthly, there was the evidence of Dr Corlette that a report containing his electronic signature which refers to a medical article does not necessarily mean that he read the article. His evidence was that he may have only read the summary. This leaves open the possibility that someone else within PIA Consulting may have read the whole article, reached conclusions amounting to expert opinion and prepared a medical report. In circumstances of having read only the summary, Dr Corlette may have then endorsed conclusions reached by someone else.
The evidence given by Dr Corlette on the topic of whether, in Ms Van Loggem's particular circumstances, there could have been a progression of noise induced hearing loss beyond the date of retirement as a result of her exposure to industrial noise in the course of her employment, and whether such exposure could have also affected subsequently her experience of tinnitus, was inconsistent and unsatisfactory. Neither party contended otherwise. His has been the only evidence submitted as expert opinion evidence relating to the article by Moore et al. The unsatisfactory oral evidence was in the context of an acknowledgement, as recorded in paragraph 29 above, that he did not address in his second report his clinical reasoning for the significant deterioration in hearing since 2014, even though he was asked to do so.
Recently, in addressing the s 22 scheme for the assessment of permanent impairment in a case involving hearing impairment, the Court of Appeal referred to the need to differentiate between what was and what was not work-related noise-induced hearing loss.[82]

[82]

It is now convenient to address some authorities which have considered the appropriate audiometry test and resultant audiogram to be the basis of the assessment of permanent impairment arising from a work injury where there have been a series of audiometry tests over time.
In Stewart, Kelly DPJ held that, ordinarily, it would be the audiometry testing undertaken at the time of the examination by the assessor that would provide the relevant results. In reaching that conclusion, her Honour made the following observations:
1. Regulation 67(1)(b) of the Return to Work Regulations 2015 (RTW Regulations) provide for the assessor to conduct a physical examination and, having regard to the audiometric test results, determine the noise induced hearing loss.[84]
2. Whilst reg 67 describes a procedure for determining whether a worker suffers from noise induced hearing loss in accordance with s 188 of the RTW Act, it is also a procedural basis for an assessment of permanent impairment under s 22.[85]
3. The audiometry tests referred to in Chapter 9.1 of the IAG should be conducted in accordance with reg 67.[86]
4. Section 22(7)(b) of the RTW Act provides that the assessment of the degree of impairment resulting from a work injury must, subject to subsection 8, be based on the worker's current impairment as at the date of assessment.[87]
5. Whilst s 22(8) of the RTW Act contains special provisions for psychiatric injury and consequential mental harm, there is no such provision that would require the assessment of hearing loss to be treated differently from other work injuries which are assessed by reference to the presentation at the time of the examination.[88]
6. The requirement, in accordance with s 22(8)(b) that impairments from unrelated injuries or causes are to be disregarded may usually be complied with by making such adjustments as are necessary.[89]
7. Subsection 188(2) creates a legal fiction of a deemed date of injury immediately before notice of the injury was given and, whilst that may be some years prior to the assessment, other injuries are also commonly assessed long after employment has ceased to have an effect.[90]
Kelly DPJ did refer to circumstances where the need to comply with the purpose of s 22(8)(b) may provide a cogent or compelling reason to depart from the assessment of permanent impairment being based upon the audiometry results on the day of the examination by the assessor.[91]
In Payne v Return to Work SA,[92] Hannon Aux J addressed whether the impairment assessor erred in relying upon an audiometry test that had been conducted by another medical expert before the assessment and which indicated a lesser degree of noise induced hearing loss than that revealed by audiometry at the time of the assessment. His Honour considered the relevant principles and guidelines governed by ss 22(2), (7) and (8) of the RTW Act, and especially Chapter 9 of the IAG. The decision also sets out some of the circumstances that may constitute a good reason and a sound basis for a referral to an IMA. He stated:

[84]

Hannon Aux J referred to the decision in Stewart and observed that in Payne the applicant urged the Tribunal to adopt the same approach and the respondent did not take issue with the general principles adopted in Stewart. In those circumstances Hannon Aux J agreed with the observations of Kelly DPJ in Stewart as to the principles applicable to the operation of s 22(7) and (8) of the RTW Act to the assessment of hearing loss but he considered those principles did not necessarily result in the same outcome in Payne.[94]
In Payne, the worker was seen by Dr Hooper who assessed that day the worker suffering from a 22.6% BHI. That translated to an 11% WPI. In his report he chose to rely for his assessment of impairment upon audiometry of the worker conducted some four months earlier by Dr Hains where the audiogram recorded a 15.5% BHI. That translated to an 8% WPI. Hannon Aux J concluded that Dr Hooper had effectively ignored his own assessment audiogram and that there were no cogent or compelling reasons proffered by him for doing so. In addition, his Honour found that Dr Hooper's decision to do so was influenced by matters extraneous to the proper exercise of his medical judgement.[95]
In Skuse v Return to Work Corporation of South Australia[96] the assessor assessed the worker in 2021 and relied upon an audiogram performed on 30 June 2015. There had been a retirement from employment due to ill health in the early part of 2013.[97] The audiogram of 30 June 2015 showed the worker had a 2.1% BHI. The assessor added a further 2% on account of tinnitus to arrive at a net overall BHI of 4.1%. That translated to a 0% WPI. There was evidence of an audiogram completed on 28 April 2021 which recorded an overall BHI of 10.2%. That translated to a 5% WPI. The claim for compensation had been completed on 17 December 2019 and forwarded to the Corporation for determination on 23 March 2020. Calligeros DPJ considered the relevant principles to be by reference to ss 188, 22(2)(a), 22(7)(b) and 22(8)(b) of the RTW Act, reg 67 of the RTW Regulations and Chapter 9 of the IAG. His Honour observed that reg 67(1) of the RTW Regulations explains that the procedures that follow are for the purposes of ss 188(4) and (5) of the RTW Act. His Honour then observed that those provisions permit a self-insured employer, which is obliged to pay compensation to a worker, to seek financial contribution from an earlier self-insurer or the Corporation. His Honour disagreed with the conclusion of Kelly DPJ in Stewart that the regulation is also relevant to the procedural basis for an impairment assessment under s 22. He stated:

[86]

Calligeros DPJ then referred to the statement in Stewart that the expression "relevant audiological tests" in Chapter 9.1 of the IAG is a reference to tests which comply with reg 67 and not audiometry at large. Calligeros DPJ disagreed with that conclusion and observed that Chapters 9.1 and 9.2 of the IAG require impairment assessors to exercise judgement and discretion when conducting a permanent impairment assessment.
Calligeros DPJ found that any hearing loss experienced by the worker after 2013 was from a source other than employment.[99] His Honour noted that s 22(7)(b) of the RTW Act is subject to s 22(8)(b). He went on to observe that in Stewart, none of the hearing loss was sustained after either of the audiograms that were in issue and, on that basis, s 22(8)(b) could not apply in a manner inconsistent with s 22(7)(b).
His Honour also referred to the statements of principle from Paschalis and Return to Work Corporation of South Australia v Opie and Anor[100] as to the requirement to disregard impairment from unrelated injury or causes and added that such principle extends to claims involving noise induced hearing loss.[101]
The analysis of the reasons for decision in the matters of Stewart, Payne and Skuse demonstrates that the approach by reference to the facts of the case is important when the Tribunal is considering whether the results of audiometry testing prior to the date of assessment should form the basis of the assessment of permanent impairment, rather than the results of audiometry testing performed at the time of the assessment.
Whilst the differences in reasoning between Kelly DPJ in Stewart and Calligeros DPJ in Skuse have been noted, it is neither necessary nor appropriate at this time, given the trial evidence is yet to be finalised, to express a concluded view in relation to those differences. To the extent necessary, those differences may be addressed after the report of the IMA is received and the parties have had an opportunity to advance submissions in all the circumstances, including the reasoning and opinion of the IMA in relation to the questions to be put. If it becomes necessary for a decision to be made as to the differences between Stewart and Skuse then consideration would need to be given to a possible referral of a question of law to a Full Bench of the South Australian Employment Court pursuant to s 22 of the SAET Act.[102]
I am not presently persuaded by Ms Van Loggem's submission to the effect that the 2017 audiogram prepared by Audika could not be a basis for a finding of fact as to the noise induced hearing loss experienced by Ms Van Loggem at that time in the absence of evidence that the audiometer was calibrated according to Australian Standard AS IEC 60645.1-2002 at that time. That requirement, as expressed in Chapter 9.8 of the IAG relates to the audiometric testing that is performed on the day of the assessment.
Chapter 9 of the IAG does not expressly require audiometers to have been calibrated to that standard, if it was a test undertaken prior to the assessment, in order for the assessor to take the result into account in determining the extent to which the hearing loss assessed on the day of the assessment is attributable to noise induced hearing loss and tinnitus arising from employment. In neither Stewart, Payne or Skuse did the Tribunal refer to such a requirement. The approach contended by Ms Van Loggem was rejected by Calligeros DPJ in Skuse.[103] His Honour held it is for the assessor and ultimately the Tribunal to be satisfied that earlier audiometry testing is reliable. In Paschalis, albeit in relation to addressing evidence of an unrelated injury or cause to be taken into account in assessing impairment from a psychiatric work injury, their Honours referred to the difficulties associated with applying the IAG in such circumstances and the significance of it not being mandated expressly by the IAG.[104] This reasoning may also be appropriate when considering the approach to the reliability of audiometric testing undertaken before the assessment of permanent impairment.

[90]

The Chief Justice addressed the interrelationship between the two statutory fictions or presumptions created. He observed that s 113(2) firstly deems a date for the occurrence of the whole of the hearing loss and not just the injury. That is, an irrebuttable presumption is created that the whole of the loss occurred immediately before notice of the injury was given.[110] In this way, the first limb fixes the date upon which the whole of the loss is taken to have occurred and determines the applicable prescribed sum for the purposes of s 43.[111]
The Chief Justice observed that the cognate provision to s 188(2) of the RTW Act, s 113(2) preserved a rebuttable presumption that the whole of the hearing loss has arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss. His Honour stated that apart from preserving the rebuttable presumption, unlike other injuries of gradual onset, it deems all of the loss as having been sustained in the last employment which was capable of causing it and it also encourages a single claim against the last employer whose employment was capable of causing the loss.[112]
Similar statements of principle were made by Stanley J in Onody.[113]
The observations of the Chief Justice referred to in paragraphs 105 and 106 above relating to the whole of the hearing loss deemed to have occurred at the one time are to be understood in the context of the issue addressed and an injury that develops gradually. The primary issue raised in Renfrey was whether the whole of the hearing loss from employment was compensable under the State scheme where some of the hearing loss was experienced after the employer became a licensed corporation bringing it within the operation of a Commonwealth workers compensation scheme. The reasons do not address hearing loss that did not arise from employment.
In the circumstances of the referral to be made to an IMA, it is neither necessary nor appropriate to determine at this time whether ss 188(2) and (3) constitute an exhaustive code in relation to the establishment of a work injury for noise induced hearing loss and the assessment of permanent impairment arising from that injury.
In this case, an important issue is the extent to which the progression of hearing loss after the date of retirement, and leading to the audiometry testing performed by Dr Corlette, has been caused by the exposure to noise in employment until the date of retirement. The evidence of Dr Corlette in relation to this issue was unsatisfactory. It was inconsistent and unreliable. Further opinion evidence should be obtained from an IMA in relation to that issue. The referral may include questions relating to the weight to be attached to the article by Moore et al in the circumstances of this case. A concluded view as to the construction and application of s 188(2) should await the further opinion evidence to be obtained. I note that in Skuse, Calligeros DPJ held that the assessor was required to not take into account any hearing loss from non-occupational sources and that any hearing loss in that case after retirement was from a source other than employment but that was in circumstances of a retirement from employment due to ill health in 2013. Accordingly, s 188(3) had application. Ms Van Loggem did not retire from employment on account of age or ill health. It is s 188(2) that applies in this case.

[96]

In Storey v Return to Work Corporation of South Australia,[115] the Full Bench, after referring to that paragraph, stated that in the circumstances of the exercise of clinical judgement, combining both the 'art' and 'science' of medicine will inevitably mean that, on occasions, reasonable minds may differ as to the most accurate way to measure matters that are the subject of an assessment.[116] Similarly, reasonable minds, in the exercise of the clinical judgement required in this case, might differ as to the relevant percentage to be assigned for severe tinnitus within the range set out in the IAG.
In his report dated 30 October 2023, Dr Corlette recorded a history of the tinnitus being present all the time and often interfering with sleep induction and concentration, especially when watching television, socialising, conversing and speaking on the telephone.
Whilst that history may have, in the exercise of judgement, given rise to an allocation of more than 1% BHI, I am not persuaded that Dr Corlette's assessment is the result of either actual or potential error or a failure to discharge the function required of him by s 22 of the RTW Act and the IAG.
The parties also did not challenge the evidence of Dr Corlette that by reference to the audiogram of 14 November 2017, the assessment would be 0% WPI.
There has been a decision of the Full Bench of the Tribunal which did conclude that the s 22 process had so fundamentally failed as to make appropriate an order that the process to be undertaken in accordance with s 22 of the RTW Act be recommenced. In Kaye v Return to Work SA,[117] the Full Bench held that attaining maximum medical improvement (MMI) with respect to the impairment subject of assessment is a condition precedent to the making of an assessment in accordance with the IAG. Having found that the injury to be assessed as to permanent impairment had not reached MMI at the time of assessment by the assessor, the Full Bench set aside the order made at first instance for a referral to an IMA and set aside the decision under review, with the effect of the s 22 process to be recommenced at a later date when all injuries with impairments to be assessed reached MMI. Those circumstances are materially different to this case.
I have not been persuaded that at this time, there should be a finding that the assessment of permanent impairment performed by Dr Corlette is so deficient that it cannot constitute as assessment in accordance with the requirements of s 22 of the RTW Act and the IAG so as to enable the Tribunal to review the decision of EML as to Mr Van Loggem's entitlement under s 58 of the RTW Act.
Upon the evidence currently before the Tribunal, Dr Corlette exercised the function allocated to him to assess permanent impairment, but the level of concern that I have in relation to the reasoning as to which audiometry test results should form the basis for the assessment of permanent impairment arising from the work injury, makes it appropriate to refer Ms Van Loggem to an IMA to obtain further evidence, in response to questions to be put, in relation to that topic. I refer to the reasons set out above, and especially paragraph 85, as to why it is appropriate to refer questions related to this issue to an IMA.

[97]

It is convenient to now address the concerns raised by Ms Van Loggem in relation to the subsequent communication with Dr Corlette by Lisha Mehta after the receipt of the report dated 30 October 2023.
There are decisions of this Tribunal that have criticised the Corporation unilaterally approaching an assessor after completion of a permanent impairment assessment report, where the correspondence has suggested that the assessor should change the assessment of permanent impairment.[118]
Those decisions have also addressed the scope of the review of compliance referred to by Chapter 1.51 of the IAG and the scope of Chapter 1.60 which authorises a requestor to seek clarification of a report if it is not clear that the report has been completed in accordance with the IAG.
In this case, the essence of the enquiry that was made after the report dated 30 October 2023 related to the reliance in the report upon the audiometry test results on the day of the assessment because of insufficient evidence, at that time, that the audiogram of Audika conducted on 14 November 2017 was reliable. The evidence to date does not establish that EML was aware, at the time of requesting the first report, that the audiogram report of 14 November 2017 may not be reliable by reference to the information available from Audika at the time.
Ms Van Loggem's solicitors were informed of the intention to obtain a supplementary report, were provided with a draft of the request for the report which referred to the further information from Audika, and were given the opportunity to advance submissions as to its content. Ms Van Loggem objected to the letter proposed to be sent to Dr Corlette. The expressed basis of the objection was not the errors raised at trial as to the contended deficiencies in the application of s 22 and s 188, but that the proposed letter amounted to an attempt to "change an assessment".[119] In an earlier email transmission of 15 November 2023, Ms Van Loggem's solicitor also expressed a concern that the proposed letter would amount to a unilateral contact.
In both Canales-Cordova and Palios, the Tribunal held that the result of either illegally or improperly obtained evidence related to the obtaining of a supplementary medical report is that the Tribunal may exercise a discretion to not receive the supplementary report in evidence.[120]
In the matters of Canales-Cordova and Palios, the requests for a supplementary report were worded in a manner that the Tribunal found sought to encourage the assessor to lower the assessment of permanent impairment arising from the work injury by reference to the Corporation's view of the construction and application of relevant provisions including in the IAG, in respect of which the assessor was accredited. In this case, the Corporation did not have evidence at the time that explained a work related progression of hearing loss and development of tinnitus beyond the date of exposure to noise from employment. It also obtained the letter from Audika dated 15 November 2023 which indicated to the Corporation that the audiogram of 14 November 2017 was reliable. As addressed above, there are judgments of the Full Court and of the Court of Appeal which have stated and reiterated that the assessment of permanent impairment to be used to calculate entitlements to compensation is to be confined to the impairment that arises from the work injury. In the current circumstances of this case, even if I were to conclude that the supplementary report of Dr Corlette was a result of an unlawful or inappropriate process undertaken by the Corporation, I would not exclude the receipt of the supplementary report in evidence in the exercise of the discretion conferred. The weight to be attached to the report however, will be in the context of these reasons and the evidence to be obtained from the IMA.

[101]

In Abraham, Gilchrist DPJ did construe s 22(10) in accordance with orthodox principles of statutory construction. The provision was construed in context where his Honour considered s 22(10) and s 58(9) to be complimentary provisions.[123] A number of other decisions of the Tribunal have referred to the one assessment rule or principle as arising from the text of s 22(10) of the RTW Act.[124]
The decision of Gilchrist DPJ in Abraham concerned an assessment of permanent impairment following a psychiatric injury.
A few years after Abraham, Gilchrist DPJ delivered his decision in Adom v Return to Work SA No.2 (Adom).[125] In that case, his Honour expressed concerns about findings made by the assessor in relation to an assessment of permanent impairment under s 22 of the RTW Act. The assessor found that Mr Adom only experienced a lack of feeling in and around his lower lip on the left side. His Honour concluded that there was credible evidence that it may be bilateral. The Corporation submitted that the referral to an IMA should be limited to the question of whether the loss of feeling was one sided or bilateral. It submitted that to do otherwise would undermine the one assessment principle enshrined in s 22 of the RTW Act. In the course of the trial some evidence suggested that Mr Adom may have also experienced impaired digestion related to his use of medication in respect of his accepted compensable injury. He submitted that there should be a referral to an IMA in relation to all claimed impairments. His Honour noted that in Department of Health and Ageing v Neilson,[126] which concerned an assessment of impairment following a work injury to the left knee, the Full Bench found that there had been a failure to take steps to quantify and exclude any permanent impairment suffered as a result of an earlier injury and in its referral to an IMA, the referral was confined to that issue.[127] Gilchrist DPJ then noted in Adom that in March v Return to Work SA (Northland Caravans)[128] the Tribunal directed the IMA to reassess all claimed impairments after the Tribunal found that the initial assessment was at least in part based upon assumed facts that the Tribunal found may not have been credible.
After this analysis, Gilchrist DPJ stated:

[103]

Relevant decisions of Calligeros DPJ indicate that the extent to which medical judgement is to be exercised, is a factor to be considered in any possible referral to an IMA. In Harris v GM Holden Limited[130] an error was made by the assessor in relation to the allowance for the impairment upon the activities of daily living and it was held by the Tribunal that it could substitute its own estimate of the activities of daily living allowance. That was contrasted to an exercise of medical judgement, which his Honour stated would require a referral to an IMA. That approach was confirmed by his Honour subsequently in Burnett v Return to Work Corporation of South Australia.[131] In that case the assessor provided an assessment of permanent impairment of lower limbs following bilateral knee injury. He adopted the diagnostic based estimator method but also included in his report the percentage of WPI he would have assessed by the range of motion method. His Honour held that the assessor had misdirected himself as to the significance of a note made by another doctor and took that into account in the assessment by reference to the diagnostic based estimator method.[132] After noting that neither party identified any error in the results obtained by the range of motion method and having found that to be the most appropriate method of assessment, his Honour held it was appropriate to rely upon that assessment and it was not necessary to refer the applicant to an IMA for further assessment of permanent impairment. The decision of Gilchrist DPJ in Adom, the decision of the Full Bench in Nielson and the decisions of Calligeros DPJ in Harris and Burnett addressed above and the decisions in footnote 124 were not referred to by Crawley DPJ in Smout. There is no indication from the reasons in Smout that either party raised any of these cases in submissions.
The approach by Crawley DPJ in Smout appears to be in circumstances of a finding of non compliance based upon a joint position of the parties. In an earlier decision in Ever v Return to work Corporation of South Australia,[133]referred to in Smout, Crawley DPJ held that where the Tribunal has determined an assessment to be non compliant, the entirety of the assessment needs to be considered by an IMA.[134] In the current proceedings, I have not, as yet, made a concluded finding as to compliance. In Sean Luke v Department of Primary Industries and Regions,[135] the Full Bench confirmed earlier decisions which held that potential error may be sufficient for a referral to an IMA.[136]
The Court of Appeal has recently delivered its judgment in Return to Work Corporation of South Australia v Papadopoulos (Papadopoulos).[137] The worker had suffered a work injury to the left greater trochanter and a work injury to the left hip joint. The Court of Appeal held that consent orders made by the South Australian Employment Tribunal in February 2020 had the effect of determining any entitlement for non-economic loss pursuant to s 43 of WRC Act for both injuries and including the result of a left total hip replacement surgical procedure that was undertaken on 26 May 2015. In circumstances of a further claim for non-economic loss in March 2020 for the left hip replacement undertaken in 2015, described as a "surgical injury," the Court of Appeal, in its reasoning, also addressed s 22 of the RTW Act. The appeal was heard on 2 December 2022. The Court addressed s 22(10) in its form in 2015. It then provided:

At a glance

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Judgment (175 paragraphs)

Van Loggem v Return to Work Corporation of South Australia [2025] SAET 47 (22 May 2025)

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Legislation Cited (5)

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