The way in which tinnitus is to be calculated and applied in accordance with the Guidelines

Employment and Workplace Relations

The recent case of Scardamaglia v Amcor Pty Ltd v A/Prof Bernard Lyons [2023] VSC considers s.91 of the Workplace Injury Rehabilitation and Compensation Act (‘the Act’), and the way in which tinnitus is to be calculated and applied in accordance with the Guidelines.

Background:

      • The percentage of hearing loss is not the entirety of the determination required by s.91(4) of the Act.
      • S.91(a)(a)(ii) and the ASOHNS Guidelines address issues that may be raised as part of an assessment of compensable impairment.
      • To assist with the clinical assessment for tinnitus, the ASOHNS Guidelines reference the AMA Guides.
      • The effect is that an ENT assessment will include the aspect of the AMA Guides, which involves tinnitus.
      • Prior to the outcome of Scardamaglia, it was accepted that:-
        • Under the ASOHNS Guidelines,  the assessment of noise induced hearing loss included an allowance of tinnitus.
        • Any assessment of tinnitus under AMA Guides would be a duplication of the assessment conducted in accordance with the ASOHNS Guidelines.
      • Therefore, tinnitus was to be rejected as a separate/discrete injury, on the basis that it formed part of the accepted noise induced hearing loss under the ASOHNS Guidelines.
      • The judgment of Scardamaglia has concluded differently, that an additional allowance of up to 5% for the effect of tinnitus as it considered appropriate.

Scardamaglia v Amcor Pty Ltd v A/Prof Bernard Lyons [2023 VSC

This matter involves an impairment benefits claim in respect of industrial deafness. The injury described in the claim form specified ‘noise induced hearing loss and tinnitus’. 

The plaintiff’s claim was accepted, and the assessment of ENT, Mr Silverstein found a 0% whole person impairment (‘WPI’). The assessment was disputed and referred to the Medical Panel for determination. The Medical Panel Opinion (‘MPO’) also concluded 0% WPI.

The plaintiff appealed the opinion, seeking for the Supreme Court to quash the MPO, and for the questions to be remitted to a differently constituted panel.

Ground for appeal

The plaintiff relied on the grounds that:-

      • The Panel did not assess industrial deafness in accordance with s.91 of the Act.
      • The assessment was erroneous because it failed to account for the presence of tinnitus, described by:-
        • The Panel misunderstood its task or failed to properly apply the AMA Guides; and
        • It failed to take account of a relevant consideration (the presence of tinnitus).

The plaintiff submitted that:-

      • The ASOHNS Guidelines are consistent with and incorporate some use of the AMA guides.
      • While s.91(4) of the Act and the ASOHNS Guidelines require use of the NAL procedure for measuring a loss of hearing and calculating binaural percentage loss of hearing, the NAL procedure does not address tinnitus:-
        • The ASOHNS Guidelines refer to an assessment of the effects of tinnitus on hearing function under the AMA guides;
        • In the AMA Guides, an impairment from tinnitus is provided separately to a measurable loss of hearing.
      • The AMA Guides are not displaced by s.91 of the Act, they are to be applied.

The defendant submitted that:-

      • s.91(4) of the Act replaces the method prescribed by the AMA guides for the assessment of hearing loss:
        • By prescribing an assessment of loss as a binaural loss determined in accordance with the NAL Procedure (s 91(4)(b));
        • By requiring an assessment be determined using the ASOHNS Guidelines being a manner of assessment and determination approved by the Minister (s 91(4)(a)(ii)).

Consequently, s.91 excludes a separate assessment of tinnitus.

      • Application of the NAL procedure encompasses the whole of the impairment of hearing.
      • The ASOHNS Guidelines confirm the effect of tinnitus on hearing is accounted for, by the pure tone audiogram results, and any further allowance of tinnitus is a duplication.
      • The initial doctor, Mr Silverstein and the reasons in the MPO described awareness of tinnitus, but didn’t make an additional allowance.

Decision

      1. The Panel erred by failing to consider the effect of tinnitus on the hearing function of the ear, as provided by the ASOHNS Guidelines.
      2. The AOSHNS Guidelines referred to the ENT assessment under Chapter 9 of the AMA Guides, which remains relevant on any question of any specific allowance to be made for tinnitus in the presence of hearing loss, which permits an additional allowance of up to 5% before conversion to WPI.  Under s.91(4) of the Act, that allowance would form part of the percentage diminution of hearing.
      3. The Panel should have made any additional allowance of up to 5% for the effect of tinnitus as it considered appropriate. Had the Panel followed this method, there would have been a real possibility that the plaintiff’s degree of WPI would have been at least 10%.
      4. The questions were remitted back to a differently constituted Medical Panel.

Implication

Scardamaglia affects industrial deafness claims, which include tinnitus.

The judgment may impact a number of active claims as it has challenged the position that that an assessment under the ASOHNS covers off tinnitus.

Adopting the new case law may not be seamless and may involve a number of steps, including training for ENT specialists. For now, it does not appear that additional allowances have been made for tinnitus but that may change as the space develops.

Given the nature of the case, an appeal may be considered. Stay tuned!

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