1. On 21 May 2025 Troy Waud, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brian Willams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 April 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. The appellant suffered an injury of hearing loss that was contracted by gradual process. That was due to his employment as a mechanical fitter over a period of decades. His last employer who employed him as such and in which he was exposed to hazardous noise was BCS Infrastructure Pty Ltd, the respondent. It seems he ceased that employment and so in accordance with s 17(1) of the Workers Compensation Act 1987 (the 1987 Act), his injury of hearing loss is deemed to have happened on 15 June 2022.
2. The evidence before the Appeal Panel does not establish a clear time line of the appellant's employment as a mechanical fitter. It would seem from the evidence that is before the Appeal Panel that in all likelihood he commenced his employment in New South Wales around 1980 and thereafter was employed continuously as a mechanical fitter until

15 June 2022 by various employers in employment that exposed him to hazardous noise. For all but for approximately four and a half years of those 42 years, the appellant's employment was based in New South Wales. For that intervening period of four and a half years his employment was in Queensland. His employment in Queensland also exposed to hazardous noise. 3. The Appeal Panel notes, for the sake of completeness, that subsequent to his employment with the respondent the appellant was employed as a mechanical fitter by "Nudie". The evidence before the Appeal Panel reveals that neither party contends that this employment exposed the appellant to hazardous noise, that is noise to which a loss of hearing could be due from a gradual process. 4. The Appeal Panel further notes that at some time in 1980, when the appellant was an apprentice, a battery exploded causing extreme noise adjacent to his left ear. 5. The appellant claimed compensation from the respondent under s 66 of the 1987 Act for a permanent impairment of the order of 18% whole person impairment (WPI) that he said resulted from his injury of hearing loss. He relied on reports ear, nose and throat specialist

Dr Frank Elsworth provided dated 1 March 2024 and 21 March 2024. 6. The respondent's insurer disputed the appellant was entitled to compensation for permanent impairment. It notified the appellant of that on 24 October 2024. It relied on a report of ear, nose and throat surgeon Dr Kenneth Howison dated 13 September 2024 who assessed the degree of the appellant's permanent impairment from his injury of hearing loss is 8% WPI. 7. On 5 February 2025 the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation for permanent impairment. A referral was then issued to the Medical Assessor requiring the Medical Assessor to assess the following medical disputes:

" the nature and extent of hearing loss suffered by a worker (s319(e))

 the degree of permanent impairment of the worker as a result of an injury (s319(c))

 whether any proportion of permanent impairment is due to any previous injury or preexisting condition or abnormality, and the extent of that proportion (s319(d))

 whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))"

1. The documents provided to the Medical Assessor for the purpose of assessing those medical disputes comprised the Application to Resolve a Dispute the appellant filed with the Commission to initiate the proceedings before it, the documents attached to that, the respondent's Reply to the appellant's application, and the documents attached to that. Included within those documents were the reports of Dr Elsworth and Dr Howison, the clinical records of the appellant's general practitioner, namely Dr N Van Vinh, audiograms prepared by various employees of Sonic Health Plus on 16 May 2018 and 20 October 2020, and a letter audiologist Mr John Kim of Hearing Australia wrote dated 1 February 2023 addressed to "whom it may concern".
2. The Medical Assessor detailed in the MAC the following history he obtained relating to the appellant's subjective experience of hearing loss:

He gave a history of bilateral gradually progressive hearing loss. He said the left has been worse than the right for an uncertain time. He said a hearing loss was picked up on a hearing test at BCS with right equal to the left. He said he was not sure when he was told the left was worse but some time when working at BCS. He said he is not sure when he noted the left hearing loss being worse than right began. He said he is not sure if the left hearing suddenly dropped. I said Dr Van Vinh's clinical notes in 2020 said he had left sudden hearing loss and he said he felt normal and didn't know what Dr Van Vinh wrote. He said he consulted Dr Kleiner and had an MRI of the head, one for the ear, at St George Hospital but not sure. He said without hearing aids he has difficulty hearing conversation, has difficulty hearing in background noise and needs to increase the volume of the television above others. He has he has binaural hearing aids, ? CROS aid which he obtained 4 weeks ago. He said they help his hearing. He said he is not wearing them today.

He gave a history of a bilateral ringing with the left worse than the right. He said it does not interfere with his daily activities during the day on the left or the right. He said it does not interfere with sleep induction at night on the left or the right. He said he has not discussed his tinnitus with his GP. He said he has discussed his hearing loss with an ENT Specialist."

1. The Appeal Panel notes that the clinical notes of Dr van Vinh, to which the Medical Assessor referred in that history, is an obvious reference to entries in the appellant's general practitioner's records for consultations he had with the appellant on 16 September 2020,

9 October 2020 and 19 November 2020. Verbatim, those entries are:

Dr G Kleiner: arachnoid cyst in the right posteriorfossa, but no significant mass-effect

1- Acute sensoryneural hearing loss on the left side. No further medication for it

1. The Appeal Panel notes that the reference to Dr G Kleiner in those records is, in all likelihood, ear, nose and throat surgeon Dr Gil Kleiner.
2. In addition to that history the Medical Assessor detailed in part 10c of the MAC, when explaining the assessments he made of the referred medical disputes, that the appellant advised him that whilst he was working for Bonds, which the Appeal Panel notes was his initial noisy employer, a battery blew up but he did not then notice any hearing loss nor did he have any hearing loss three days later when he returned to work. The Appeal Panel notes that history is contrary to the history Dr Elsworth obtained which is that since that event the appellant had "no effective hearing in his left ear".
3. The Medical Assessor detailed within the MAC the appellant's history of exposure to noise in his various employments. That history included the time in which the appellant was employed in Queensland. The detail the Medical Assessor provided revealed the appellant was exposed to hazardous noise in those employments.
4. The Medical Assessor conducted pure tone audiometry of the appellant's hearing. He detailed, in tabular form, the audiogram he obtained from that, which in terms of the appellant's hearing losses in his left and right ears and the binaural hearing impairment based on those losses is as follows:

1. The Medical Assessor considered that the appellant's hearing loss in his left ear, insofar as it is greater than the appellant's hearing loss in the right ear, is not due to the appellant's exposure hazardous noise in his employment. The Medical Assessor's explanation for forming this view is contained in part 10a of the MAC and is as follows:

"Physical examination and pure tone audiometry indicate a right sensorineural hearing loss maximal in the high frequencies and profound left sensorineural hearing loss. The

responses I obtained upon pure tone audiometry are repeatable on ascending and

descending threshold measurement and I considered them to represent accurate auditory thresholds. The configuration of his sensorineural hearing loss is not one wholly caused by his occupational noise exposure as described above.

Therefore considering his medical history and physical examination including pure tone

audiometry, I formed the opinion that his right sensorineural hearing loss and an equal

amount in the left ear are caused by occupational noise induced hearing loss of gradual process. The left hearing losses in excess of the right (left asymmetric sensorineural hearing loss) are not related to his occupation. This is because occupational noise induced hearing loss of gradual process is symmetric rather than asymmetric. In addition, Dr Van Vinh's clinical records report left sudden hearing loss in 2020 with referral to Dr Kleiner. And the audiograms of 16.5.2018 and 20.10.2020 document the change in the left hearing levels. The left sudden hearing loss documented in the clinical records is not caused by occupational noise induced hearing loss of gradual process because occupational noise induced hearing loss of gradual process will not cause a (L) gross sudden hearing loss."

1. The Medical Assessor's reference within those passages to the audiograms of 16 May 2018 and 20 October 2020 are audiograms Sonic Health Plus obtained.
2. It is apparent from the MAC that the Medical Assessor was of the view that the appellant's losses of hearing at the frequencies of 500Hz, 6000Hz and 8000Hz is not due to hazardous occupational noise to which the appellant was exposed in his employment. That conclusion of the Medical Assessor is not challenged in the appeal.
3. Hence, the Medical Assessor after equating the appellant's loss of hearing in his left ear with his loss of hearing in the right ear at the frequencies of 1000Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz, found that the appellant, as a consequence of his exposure to hazardous occupational noise in his employment, had a binaural hearing impairment of 0.8% at 1000Hz, 0.6% at 1500Hz, 3.4% at 2000Hz, 4.1% at 3000Hz, and 7.5% at 4000Hz. That is to say, the Medical Assessor found that the appellant had a binaural hearing impairment of 16.4% that was due to hazardous occupational noise in his employment over the course of 42 years until 15 June 2022, and had a binaural hearing impairment of 14.6% that was not related to his employment. After making a correction for presbycusis, the Medical Assessor assessed the appellant's binaural hearing impairment that occurred gradually due to his exposure to hazardous noise in his employment, reduced to 15.4%, which in accordance with Table 9.1 of the Guidelines converted to 8% WPI.
4. The Medical Assessor also made a deduction to that impairment under s 323(1) of the 1998 Act of 10%. His explanation for that is contained within part 10a of the MAC and is as follows:

"I note the claimant was not a "worker" employed within NSW for the period of approximately 4.5 years as he was employed in Queensland**.** The occupational noise exposure during this period was hazardous to hearing and in all likelihood caused occupational noise induced hearing loss that contributed to his current impairment. This period is prior to the deemed date of injury of 14.10.2018.

Hence, it is the case that if a worker has a prior condition of occupational hearing loss that occurred while the applicant worker was not a "worker" employed within NSW then

potentially s323 may be engaged such that if a proportion of the worker's permanent

impairment is due to that prior condition then there must, under s323(1), be a deduction for it.

I consider that the evidence in this matter clearly establishes that the claimant had, as a consequence of his employment in Qld for about 4.5 years, irreversible and permanent damage to his cochleas. The cochlea is part of the inner ear and is similar in structure to a seashell. It is approximately 33 millimetres in length. It has hair cells along its length and damage to those hair cells will cause hearing loss. The hair cells 10 millimetres along the length of the cochlea from its basal opening are the first to be permanently injured by exposure to hazardous occupational noise of a nature and duration to do so. The first permanent partial hearing loss occurs at frequencies affected in this region of the cochlea namely at 3, 4 and/or 6 kHz even if asymptomatic. And with continuing exposure to that hazardous occupational noise the injury here gradually worsens causing increasing permanent partial hearing loss at these frequencies even if asymptomatic.

The history that I obtained and set out in this report and also Dr Howison revealed that the claimant's employment for approximately 4.5 years in Qld exposed him to noise working as a Mechanical Fitter including hammering, grinding, lathes and. milling machines. I obtained a history that the claimant did wear hearing protection during this period. I note that the claimant described having to raise his voice in order to communicate at a distance of one metre, which is indicative of ambient noise levels in excess of 90dB. I also note that more than two hours exposure to such noise would be hazardous to a person's hearing and that the claimant worked 8-12 hours per day, 6 days per week, in that noise.

I consider that that evidence establishes that in all likelihood the exposure of the claimant to occupational noise for approximately 4.5 years in Qld would have caused permanent and irreversible damage to his cochleas such that he would have had permanent partial hearing loss at the frequencies of 3,000 and 4,000 Hz. That is the case, even though the claimant may not have been aware of it after working there. In other words, I consider that the claimant had irreversible and permanently damaged cochleas with permanent partial hearing losses at 3000 and 4000Hz due to hazardous noise exposure after working approximately 4.5 years in Qld and that this permanent damage to his cochleas and permanent partial hearing loss contributes to his current hearing losses at 3000 and 4000 Hz.

Accordingly, there must be a deduction under s323(1). It is simply too difficult to determine the exact extent of that damage to his ears that contributes to his present hearing loss and hence, in accordance with s323(2) of the 1998 Act, I assume that the proportion of the claimant's permanent impairment resulting from his hearing loss due to his damaged cochleas after working approximately 4.5 years in Qld is 10%. This is not at odds with the medical evidence."

1. In answer to a standard question in the templated form of the MAC, "is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?", the Medical Assessor answered "yes, and he has non-work-related hearing loss". In answer to another standard questions, "if so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality" the Medical Assessor answered "hearing, and he has non-work-related hearing loss".
2. The Medical Assessor had regard to the reports of Dr Elsworth and consequently was aware of the histories Dr Elsworth obtained relating to the appellant having no hearing in his left ear after the battery exploded in 1980 adjacent to his left ear. The Medical Assessor however said he preferred the history he obtained. The Medical Assessor was also aware of

Dr Elsworth's assessment of the appellant's hearing loss and his assessment of the degree of the appellant's permanent impairment relating to his injury of hearing loss. The Medical Assessor however said that he preferred his examination, audiogram and assessment in preference to Dr Elsworth's examination, audiogram and assessment. 3. The Medical Assessor had regard to Dr Howison's report, and was consequently also aware of Dr Howison's view that the appellant's extra loss of hearing in his left ear is due to an acute acoustic trauma, which was the explosion in 1980 adjacent to the appellant's left ear. The Medical Assessor again said he preferred the history he obtained. 4. The Medical Assessor assessed the appellant had 0% WPI relating to tinnitus and he explained this was because he was of the view that the appellant's tinnitus did not fall within the class of severe tinnitus. His reason for that was the appellant's tinnitus did not interfere with the appellant's activities of daily living. 5. The Medical Assessor recorded in the MAC that the appellant's "body parts/systems" that had been referred for assessment, which was "hearing loss", had stabilised. That, in substance, was a conclusion of the Medical Assessor that the appellant's impairment from his injury of hearing loss is permanent and that the degree of his permanent impairment from his injury is fully ascertainable. 6. Hence, in summary, the Medical Assessor's assessment of the medical disputes that were referred to was:

(a) with respect to the nature and extent of the appellant's hearing loss, the appellant had a total binaural hearing impairment of 31% of which 16.4% binaural hearing impairment is due to hazardous occupational noise, which reduced to 15.4% after an adjustment was made for presbyacusis, and 14.6% binaural hearing impairment is due to non-related work loss;

(b) the degree of the appellant's permanent impairment resulting from his injury of hearing loss is 7% WPI;

(c) a proportion of the appellant's permanent impairment is due to a pre-existing condition, which the Medical Assessor found was damage to the appellant's cochlear which occurred when the appellant was employed in Queensland, and the extent of that proportion is 10%;

(d) the appellant's impairment is permanent, and

(e) the degree of the appellant's impairment is fully ascertainable.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant has not established the grounds for appeal on which it relied, and consequently the Appeal Panel neither has power nor reason to examine the respondent.[1]

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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. Paraphrasing the appellant's submissions, so as to provide a summary of them, they are that the Medical Assessor erred by not including in the assessment the Medical Assessor made of the degree of his permanent impairment from his injury of hearing loss the 14.6% binaural hearing loss that the Medical Assessor found was non-related work loss. The appellant, relying on Secretary, New South Wales Department of Education v Johnson[2] (Johnson) said that based on common law principles the Medical Assessor ought to have included this 14.6% binaural hearing impairment. The appellant submitted that this non-related work loss (which the Appeal Panel notes is the loss of hearing the appellant had in his left in excess of the loss of hearing in his right ear) made a material contribution to the hearing loss he had suffered in his left ear from occupational noise. The appellant submitted that "occupational exposure and related hearing loss only needed to play some part contributing to the assessed binaural hearing loss and whole person impairment".
3. The appellant submitted that the only basis upon which the Medical Assessor could exclude the 14.6% binaural hearing impairment that he considered was non-work-related was if the Medical Assessor had determined there was "a novus actus interveniens".
4. The appellant submitted that the Medical Assessor misapplied s 323 of the 1998 Act because he did not have a pre-existing impairment before he commenced his employment in New South Wales with Bonds. In the alternative, the appellant submitted that the deduction the Medical Assessor made under s 323(1) due to the damage to his hearing done whilst employed in Queensland was not based on evidence.
5. The appellant submitted that the Medical Assessor failed to consider all the evidence when determining whether any rating of impairment ought to be made for tinnitus. The appellant referred to paragraph 9.11 of the Guidelines, which permits a Medical Assessor to add up to 5% WPI for severe tinnitus caused by a work injury. The appellant submitted that paragraph does not require tinnitus interfere with activities of daily living for an addition of WPI to be made.
6. The appellant referred to a statement he signed on 15 November 2024 in which he described experiencing constant ringing in his ears that is extremely distressing and intrusive and which impacted on his ability to understand and converse others and participate in normal social communication and watch television.
7. The appellant also referred to the letter John Kim wrote on 1 February 2023 wherein Mr Kim noted that the appellant's bilateral tinnitus caused the appellant stress, sleep disturbance and difficulty hearing speech. The appellant referred to the history Dr Elsworth obtained, specifically that he has difficulty communicating with other people when there is background noise and difficulty watching television and having social communication.
8. The appellant submitted that he relies on the "special provisions" of s 17 of the 1987 Act and made reference to Holcim (Australia) Pty Ltd v Thomas[3] (Holcim) at [17].
9. Paraphrasing the respondent's submissions, also to provide a summary of them, they are that the Medical Assessor provided adequate reasons and justification for excluding from his assessment of the appellant's permanent impairment relating to his injury of hearing loss that part of the appellant's hearing loss the Medical Assessor considered was non-related work loss.
10. The respondent submitted that the appellant's reference to common law principles is without merit in that the Medical Assessor was required to assess only the impairment that related to the subject injury, which is what he did.
11. The respondent submitted that the Medical Assessor was correct to make a deduction under s 323 for a proportion of the appellant's hearing loss that was due to "extra jurisdictional employment". The respondent referred to a decision of another Appeal Panel in the matter of Asbestos Remover & Demolition Contractors Pty Ltd v Kruse.[4]
12. With respect to the appellant's alternative submission relating to the evidence to support a deduction under s 323, the respondent submitted that the Medical Assessor's conclusion that a proportion of the appellant's permanent impairment related to a pre-existing condition was based on evidence and based on detailed questioning and in line with the authorities.
13. With respect to the Medical Assessor not including in his assessment a rating for tinnitus, the respondent submitted that there was no failure on the Medical Assessor's part to consider any relevant matters or evidence. The respondent submitted that the Medical Assessor's conclusion that the appellant's tinnitus did not fall within a class of severe tinnitus is consistent with the history he obtained.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

1. Section 17(1)(a) and (c) of the 1987 Act reads as follows:

"(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect -

(a) for the purposes of this Act, the injury shall be deemed to have happened -

(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due - at the time when the notice was given, or

(ii) where the worker was not so employed at the time when he or she gave notice of the injury - on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury - that employer, or

(ii) where the worker was not so employed - the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice."

1. The effect of this provision is that the appellant's injury of hearing loss that occurred by a gradual process due his exposure to occupational noise in all his employments was considered to have occurred in "one blow" at the time he made his claim for compensation against the respondent.[5] Any part of his hearing loss that did not occur gradually due to his exposure to hazardous noise in his employment does not comprise his injury.
2. The Medical Assessor found that the appellant's hearing loss in his left ear to the extent it exceeded the loss in his right ear was not a hearing loss that occurred gradually due to the appellant's exposure to hazardous noise in his employment. The Medical Assessor's reasons for making that finding are that, firstly, hearing loss due to the exposure to occupational noise is symmetric rather than asymmetric and, secondly, the medical evidence before him, consisting of the audiograms done on 16 May 2018 and 20 October 2020 and the entries Dr Vinh made in his clinical records in October and November 2020, revealed the appellant suffered a sudden and gross hearing loss in his left ear some time after he started his employment with the respondent.
3. The Appeal Panel, which is an expert panel that has two ear, nose and throat surgeons of the three members that constitute it, agrees with the Medical Assessor's explanation for this. Hearing loss caused gradually by hazardous occupational noise necessarily is symmetric because over the period of time in which the worker's loss of hearing gradually occurs, the worker's ears will be of equal distance from the sources of noise causing the damage to the worker's cochleas. That is, the worker's cochleas will have been exposed to the same amount of damage.
4. In this case too, it was open to the Medical Assessor to interpret the audiograms of

16 May 2018 and 20 October 2020 as demonstrating a gross and sudden hearing loss in the appellant's left ear. That conclusion from those audiograms accorded with the entry that

Dr Vinh made in his clinical records for 16 September 2020 that, against the background of the appellant having long time bilateral industrial deafness, the appellant had a sudden loss of hearing in his left ear six days prior. Dr Vinh confirmed that history in subsequent consultations. 5. The Appeal Panel notes that Dr Elsworth obtained a history of the appellant suffering total loss of his hearing in his left ear following an explosion in 1980 adjacent to the appellant's left ear. The MAC, when read as a whole, reveals that was not the history that the Medical Assessor obtained, which was that that incident had no effect on the appellant's hearing. The Medical Assessor was aware of the history Dr Elsworth obtained but said in the MAC that he preferred the history he obtained. That history accords with the evidence in the form of the audiograms of 16 May 2018 and 20 October 2020 and also the entries Dr Vinh made in his clinical records. 6. The Appeal Panel agrees with the finding the Medical Assessor made that the hearing loss of the appellant in his left ear to the extent it exceeds the hearing loss in his right ear occurred suddenly. Most likely, it occurred on 10 September 2020, as revealed by the entry Dr Vinh made in his clinical records, and was gross, as revealed by comparison of the audiograms done on 20 October 2020 and 16 May 2018. In the Appeal Panel's view that gross and sudden loss of hearing either occurred idiopathetically or was due to viral infection. As said, it was not part of the appellant's injury of hearing loss that occurred gradually over the course of decades due to his exposure to hazardous noise. 7. That part of the appellant's hearing loss would have occurred irrespective of the hearing loss that the appellant suffered gradually due to his exposure to hazardous noise in his employment. In other words, the damage to the appellant's left cochlea that resulted in the gross and sudden hearing loss in his left ear in September 2020 would have occurred irrespective of the gradual damage to his cochleas resulting from his lengthy exposure to hazardous noise in his employment. Consequently, Johnson and State Government Insurance Commission v Oakley,[6] on which the appellant relied, have no application here. 8. Further, it is implicit from paragraph 9.4 of the Guidelines that the Medical Assessor was required to exclude from the assessment he made of the appellant's permanent impairment resulting from his injury of hearing loss, the non-work-related hearing loss the appellant suffered.

1. The purpose of s 17(1) is firstly, to identify the time of occurrence of an injury of hearing loss that arises gradually due to exposure to hazardous noise, secondly, to identify the employer liable to pay compensation to the worker for that injury, and lastly, to make provision for the contribution of other employers.[7]
2. Oswell v Sublime Install Pty Ltd[8] considered the issue of the application of s 323(1) of the 1998 Act in the circumstance where a worker has suffered an injury that is a disease that was contracted by a gradual process or an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease, in regards to which s 15 and s 16 of the 1987 Act respectively determines the date of injury and the employer liable to pay compensation to the worker for such an injury. Those provisions of the 1987 Act have the equivalent effect with respect to disease injuries as s 17(1) has with an injury of hearing loss that occurs gradually due to the exposure of a worker to hazardous occupational noise. Hence, the reasoning in Oswell is germane to the application of s 323(1) in the circumstance where a worker suffers of hearing loss over a gradual process due to expose to hazardous occupational noise. Based on Oswell, the pre-existing condition for which a deduction can be made under s 323(1) of the 1998 Act must be a condition that the appellant had at the start of his initial employment in New South Wales in which he was exposed to hazardous noise.[9]
3. Thus, in this case, for a deduction to be made under s 323(1) of the 1998 Act the appellant must have had a pre-existing condition at the start of his initial employment as a mechanical fitter, which was in 1980, and that pre-existing condition must form a proportion of the permanent impairment the appellant now has from his injury of hearing loss that occurred gradually over the subsequent 42 years due to his exposure to hazardous noise in his employment.
4. The evidence does not establish that he had a pre-existing condition at that time, and indeed, it is highly unlikely he did so.
5. Section 323(1) of the 1998 Act is the only provision in the legislation that permits a deduction being made for a proportion of permanent impairment a worker has from an injury to be deducted from that permanent impairment. Hence, notwithstanding that a proportion of the appellant's permanent impairment resulting from his injury of hearing loss that occurred gradually due to his exposure to hazardous noise was caused by employment he did outside of New South Wales for a period of approximately four and a half years, seemingly in the midst of his overall employment over a period of 42 years, there is no basis upon which a deduction can be made for that proportion of his permanent impairment that is due to the damage that occurred to his cochleas while working in Queensland. No part of his hearing loss due to that employment can be elided from his permanent impairment that is due to his exposure to hazardous noise.
6. The respondent relied on the decision of another Appeal Panel to support its contention that the relevant date for the purposes of the application under s 323(1) of the 1998 Act is the date by which an injury of hearing loss is deemed to have happened in accordance with s 17(1) of the 1987 Act. The Appeal Panel declines to follow that authority because it is inconsistent to the reasoning of Oswell and Cullen.

1. Paragraph 9.11 of the Guidelines permits a Medical Assessor to add to the work-related binaural hearing impairment a Medical Assessor assesses a worker has, 5% binaural hearing impairment for severe tinnitus caused by the work-related injury. Paragraph 9.11 also stipulates that the assessment of severe tinnitus is based upon a medical specialist's assessment.
2. The appellant contends that the Medical Assessor did not have regard to all relevant evidence in forming his conclusion that he does not have severe tinnitus. The appellant referred to his statement wherein he described having constant ringing in both ears, difficulty watching television, difficulty participating in normal social communication, loss of confidence, reduced energy, reduced motivation, being unable to understand what people are saying, having difficulty talking over the phone, and experiencing social isolation. The appellant also referred to the report of Dr Elsworth dated 1 March 2024 wherein Dr Elsworth described the appellant having difficulty in communicating with other people particularly where there is background noise and difficulty watching television and having normal social communication. The appellant referred to Mr Kim's letter wherein Mr Kim described the appellant's bilateral tinnitus causing the appellant distress, sleep disturbance and difficulty hearing speech.
3. The Appeal Panel's reading of the appellant's statement and Dr Elsworth's report is such that the difficulties the appellant describes with his communication and watching television relates to his loss of hearing, as distinct from the tinnitus he experiences.
4. The Medical Assessor was aware and had regard to the appellant's statement. He was also aware of and had regard to the report of Dr Elsworth. Similarly, he had regard to Mr Kim's letter.
5. It is apparent to the Appeal Panel that the Medical Assessor had regard to all relevant evidence relating to the appellant's tinnitus.
6. The Medical Assessor also said within the MAC that he preferred the history he obtained, which of course includes the appellant's report to him on the symptoms he presently suffers due to his hearing loss and due to tinnitus. Those symptoms, with respect to the tinnitus the appellant experiences, revealed that the appellant has bilateral ringing with his left ear being worse than the right, but this did not interfere with his daily activities of living or interfere with his sleep induction.
7. In that circumstance, the Appeal Panel considers the Medical Assessor did not make any error with respect to his finding that the appellant's tinnitus is not severe. Consequently, paragraph 9.11 could not be engaged so as to add a percentage BHI for severe tinnitus when assessing the degree of the appellant's permanent impairment from his injury of hearing loss.
8. For these reasons, the Appeal Panel has determined that the MAC issued on 23 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Brian Williams and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - calculation of whole person impairment (WPI) for industrial deafness as set out in the Table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-

Resultant total BHI of 15.4% % = 8 % whole person impairment (Table 9.1)

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]- [130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].

[2] [2019] NSWCA 321.

[3] [2022] NSWCA 183.

[5] Holcim at [17]; Commissioner for Railways v Bain [1965] HCA5; A & G Engineering Pty Ltd v Civitarese [1996] 41 NSWLR 41, Rico Pty Ltd v Road Traffic Authority [1992] 28 NSWLR 679 at [689]-[690].

[7] Lennon v TNT Australia Ltd [2013] NSWCA 77 at [33].

[9] Oswell [85]-[92]; see also Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen) at [47]-[58].