Allen and Comcare - [2000] AATA 152

DECISION AND REASONS FOR DECISION [2000] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. A1998/236

GENERAL ADMINISTRATIVE DIVISION )

Re PATRICIA ALLEN
Applicant

And COMCARE
Respondent

DECISION

Tribunal Deputy President B.H. Burns Dr M.D. Miller, Member Air Marshal I.B. Gration, Member

Date2 March 2000
PlaceCanberra

Decision The decision under review is set aside and, in substitution therefor, the Tribunal decides that: (a) the applicant has a degree of permanent impairment of 16% resulting from an injury to her left ear; (b) the matter be remitted to the respondent for calculation of the quantum of compensation payable to the applicant pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988; and (c) the respondent pay the applicant's costs reasonably incurred, to be agreed or taxed.

…………..(Signed)..................
Deputy President B.H. Burns

CATCHWORDS
COMPENSATION – permanent impairment – hearing loss and tinnitus – whether causal link between additional symptomatology of unknown aetiology and injury – whether permanent impairment – applicability of Table 13.1 – whether onset of symptoms are "attacks" – decision set aside.

Safety, Rehabilitation and Compensation Act 1988 – s24
Guide to the Assessment of the Degree of Permanent Impairment – Tables 7.1, 7.2, 13.1
Whittaker v Comcare (1998) 28 AAR 55
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 16 AAR 241
McDonald v Director-General of Social Security (1984) 6 ALD 6

REASONS FOR DECISION

2 March 2000 Deputy President B.H. Burns Dr M.D. Miller, Member Air Marshal I.B. Gration, Member

This is an application by Mrs Patricia Allen ("the applicant") for review of a reviewable decision of Comcare ("the respondent") dated 22 April 1998 (T24), which affirmed a previous determination dated 8 August 1997 (T13) disallowing her claim for compensation for permanent impairment and non-economic loss pursuant to s24 and s27 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with medical reports from three ear, nose and throat surgeons, namely, Dr G. Crisp (Exhibit A1), Dr E. Chapman (Exhibits A2, A3, A4 and A5) and Dr R. Carroll (Exhibit R1). In addition to the documentary material placed before it, the Tribunal heard oral evidence from the applicant as well as Dr Crisp, who was called to give evidence on behalf of the applicant, and Dr Carroll, who was called on behalf of the respondent.
The applicant was represented by Mr G. Corr and the respondent by Mr N. Polin, both of counsel.
By way of background, the applicant, a school teacher, has an accepted condition of "acoustical trauma left ear" arising from a work-related incident on 1 September 1995 involving a starting pistol which accidentally discharged next to her left ear at a school sports carnival. On 14 February 1997, the applicant lodged a compensation claim for permanent impairment arising from the accepted condition (T9) which was disallowed on the grounds that the delegate of the respondent was not satisfied that there was a whole person permanent impairment of at least 10% as defined in the Guide to the Assessment of the Degree of Permanent Impairment ("the Guide"). On 24 July 1998, the applicant applied to this Tribunal for review of the respondent's decision (T1).
It was not in dispute between the parties, and the Tribunal so finds, that as a consequence of the incident involving the starting pistol, the applicant sustained a compensable injury to her left ear. For the purposes of these proceedings, it was agreed that the injury has resulted in permanent impairment, namely, hearing loss in the left ear which, under Table 7.1 of the Guide, attracts an assessment of 0.7% whole person impairment.
There are two issues requiring determination by the Tribunal. The first issue is whether tinnitus, which is accepted by the respondent to have resulted from the injury, falls properly to be described as "permanent tinnitus" within the meaning of Table 7.2 of the Guide thereby attracting an assessment of 5%, or whether it is more properly categorised as "intermittent tinnitus" thereby attracting an assessment of 0%. Having regard to Dr Carroll's oral evidence before the Tribunal, it was conceded by Mr Polin in submissions that were the Tribunal to accept the applicant's testimony, it would find that she suffers from permanent tinnitus which attracts an assessment of 5% whole person permanent impairment under Table 7.2. However, were the Tribunal to so find, the combined assessment arrived at having regard to the two individual assessments of 5% under Table 7.2 and 0.7% under Table 7.1 would nevertheless fail to meet the threshold in s24(7) of the Act below which compensation for permanent impairment is not payable to an employee. Hence, the second issue in dispute between the parties, and the one on which the applicant's case depends, is whether or not she suffers from any other permanent impairment resulting from the injury and if so whether the degree of permanent impairment resulting from the injury when combined under the provisions of the Guide is 10% or greater than 10%. Assessment of compensation for non-economic loss (s27 of the Act) was not in issue in these proceedings.
Relevant Legislation
Section 24 of the Act is the relevant provision governing a worker's entitlement to the payment of compensation for an injury resulting in permanent impairment and it reads, relevantly, as follows:
"Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
…"

Section s4(1) of the Act contains relevant definitions as follows:

""injury" means:
(a)   a disease suffered by an employee; or
(b)   an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)   …
…"

""disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;"
""ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);"
""impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;"
""permanent" means likely to continue indefinitely;"

Turning to the Guide, the following tables are relevant:
"7 EAR, NOSE AND THROAT DISORDERS
TABLE 7.1
Hearing
(Percentage Whole Person Impairment)
Hearing defects are assessed in accordance with the current procedures from the Australian National Acoustic Laboratories.
Once the binaural percentage loss of hearing has been calculated, it is then converted to a whole person impairment value.
The calculation for converting the percentage loss of hearing to a whole person percentage is:
(Percentage Loss of Hearing)
2

7EAR, NOSE AND THROAT DISORDERS

TABLE 7.2

Miscellaneous Ear, Nose and Throat Disorders
(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT

0ONE OR MORE of the following:
.          intermittent otorrhoea
.          intermittent otalgia and tinnitus
.          post nasal discharge, rhinorrhoea and sneezing
.          vertigo which does not interfere with any activities
.other conditions which are controlled by medication or for which no medication is required

ANY ONE of the following:
.          permanent otorrhoea
.          complete loss of olfaction or taste
.          permanent tinnitus
ANY ONE of the following:
. permanent otalgia
.vertigo which interferes only with activities involving personal or public safety (for example, driving a car, operating machinery)
Vertigo which interferes with activities of daily living

Permanent tracheostomy or stoma

Vertigo which interferes with all activities except household duties and self care

Vertigo which interferes with all activities to the extent that only self care can be managed but all other activity is impossible

Vertigo such that the sufferer is confined to home and requires assistance with all activities including self care

"13 MISCELLANEOUS

TABLE 13.1

Intermittent Conditions
(Percentage Whole Person Impairment)
For use in the assessment of disorders of the Haemopoetic System such as anemia, polycythaemia, leucocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc.
Principles:
Determine the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living.

% DESCRIPTION OF LEVEL OF IMPAIRMENT
0Attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment
10Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR
Attacks occur less frequently AND cause interference with all activities of daily living other than self care
20Attacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care
30Attacks occur up to 30 percent of the time AND cause significant interference with most activities of daily living other than self care
40Attacks occupy up to 40 percent of the time AND cause significant interference with most activities of daily living other than self care
50Attacks occupy up to 50 percent of the time AND cause significant interference with most activities of daily living other than self care
60Attacks occupy up to 60 percent of the time AND cause significant interference with most activities of daily living other than self care
70Attacks occupy up to 70 percent of the time AND cause significant interference with most activities of daily living other than self care
75Attacks occupy 75 to 100 percent of the time AND needs assistance with most or all activities of daily living including self care (confinement to
95residence is necessary at impairment levels of more than 80 percent)."

The Evidence

In her oral evidence, the applicant briefly described to the Tribunal the incident involving the starting pistol on 1 September 1995 ("the incident"). She told the Tribunal that she had acted as a starter at school sports days for many years and always wore hearing protection. However, at the time of the incident, the applicant was walking from one event to another with a loaded starting pistol in her hand and was bending down whilst talking to some children as she was walking. She told the Tribunal that she was not wearing any hearing protection at the time so as to hear the children better. As she was walking, the applicant tripped and, in the course of the fall, the pistol struck the left side of her head with both barrels discharging next to her left ear. Her evidence was that immediately afterwards, she could not hear and, during the following weekend, she was in pain and had "a lot of noise in my head". Soon after the incident, the applicant consulted her general practitioner who referred her to Dr Crisp, ear nose and throat surgeon.
The applicant gave oral evidence with respect to her tinnitus. She told the Tribunal that apart from immediately after the incident when the sounds in her ear were loudest, her tinnitus settled down and has been constant ever since. When it was put to her that she had told Dr Crisp on 7 September 1995 that her tinnitus had ceased, the applicant said she was being very optimistic. The applicant added that it took a while before she realised that the sounds she was hearing were in fact tinnitus. The applicant also told the Tribunal that she now hears a variety of noises, including a "deep sound or it can be a very high whistling sound", and that although it is always present, it is more noticeable during quiet periods. The applicant also stated that there are times when she is woken up by the ringing sound in her ears and that, on occasions, she has trouble getting back to sleep.
The applicant gave evidence as to the other ways in which her hearing has changed following the incident. In this regard, she described to the Tribunal three additional symptoms. First, the applicant described a "hypersensitivity" to all sounds meaning that she heard all sounds at a louder level. Secondly, she said she has difficulty distinguishing the nature of sounds she hears. For example, the applicant told the Tribunal that whilst jogging, there are times when she has difficulty distinguishing the sound of the wind from the sound of a car, and she also told the Tribunal that, recently, she could not identify the sound of two cars colliding. Thirdly, the applicant told the Tribunal she had difficulty distinguishing the direction from which sounds come. The applicant's evidence was that each of the three symptoms became evident shortly after the incident and have persisted to the present time.
The applicant also described to the Tribunal ways in which she has modified her activities as a consequence of the changes to her hearing. Whilst she was still teaching, the applicant said she could no longer coach basketball or be involved in sporting activities, she could no longer use a whistle and was unable to stand inside the hall during assemblies on account of the noise. She said that the sound of normal conversational voices including her own voice is louder which in turn has caused her to modify the amount she speaks, the volume at which she speaks and the way in which she positions her body whilst listening to others, namely, with her right ear turned towards the person. The applicant said that on account of her difficulty coping with excessive noise and with speaking, and also because of concerns she held for the safety of children were she to use an ear plug in her left ear whilst teaching, she felt her ability to teach had been significantly diminished and to the extent that she decided to cease teaching approximately two years after the incident. Apart from two days of work just prior to the hearing before the Tribunal which was part of a return to work program, the applicant has not worked as a teacher since. The applicant also told the Tribunal that she is no longer able to go to the films or theatre and cannot spend a great deal of time with her grandchild.
Dr Crisp gave oral evidence before the Tribunal. Dr Crisp first saw the applicant on 7 September 1995 following the incident and then on four other occasions in the following 13 months. Dr Crisp saw the applicant again on 17 February 1999 and prepared a report dated 19 April 1999 (Exhibit A1). In that report, Dr Crisp observed the applicant's hearing loss which was consistent with "the history of acoustic trauma" had showed some slight improvement but that "the left high tone loss remains". He also opined that the applicant's tinnitus was permanent and corresponds to a 5% impairment under Table 7.2. He then went on to diagnose her as also suffering from "recruitment", concluding that:
"…
Concerning the auditory condition of intermittent recruitment, Mrs Allen did previously complain of her own voice reverberating in the left ear when teaching and feeling a vibration in the ear. This affected her ability to teach in the classroom. Also, she found that loud noises cause discomfort in that ear. This meant that she could not blow a whistle or cope with noisy classrooms or tolerate microphones in the assembly hall. This condition is difficult to relate to table 13.1 which you have provided as it refers to conditions occurring in "attacks" which does not apply to recruitment. However, in Mrs Allen's case the phenomenon of recruitment would occur 12 or more times a year and cause interference with activities and on that basis, the condition would correspond to the 10% level of impairment set out in table 13.1"
During his evidence before the Tribunal, Dr Crisp defined recruitment as:
"… a phenomenon to do with hearing where soft sounds don't cause any problem but once you get to a certain level, the sounds suddenly get too loud, as it's as if the fine tuning is not working …"

When the applicant's evidence with respect to the three additional symptoms (other than those relating to tinnitus) was put to Dr Crisp, his opinion was that these symptoms did not equate with recruitment. Dr Crisp said the first symptom, namely, hearing all sounds at a louder volume, was not a sign of recruitment as recruitment is characterised by the perceived abnormal amplification of only louder sounds as opposed to all sounds. With respect to the second and third symptoms reported by the applicant, Dr Crisp said that they were commonly associated with hearing loss. In this regard, he stated that difficulty distinguishing the nature of sounds was a common consequence of distortion arising from the loss of hearing of certain frequency ranges, whilst difficulty distinguishing the direction of sounds occurs in patients with unilateral hearing loss, that is, hearing loss in one ear. At the conclusion of his testimony, Dr Crisp opined that the three symptoms could be the result of an unidentified impairment of the inner ear other than recruitment. Dr Crisp could not be more specific and said he would require further examination of the applicant to determine the exact nature of the impairment and its aetiology.

Dr Carroll examined the applicant once on 11 January 1999 for the purpose of preparing a report which was dated 14 January 1999. In that report, he diagnosed the applicant as having a 0.7% whole person impairment under Table 7.1 in respect of her hearing loss. In addition, if the applicant's tinnitus was accepted as genuine, Dr Carroll said she would have a 5% whole person impairment under Table 7.2 if it were continuous or a 0% impairment if it were intermittent. During cross-examination, Dr Carroll accepted that permanent tinnitus is a likely outcome of an incident such as that experienced by the applicant, albeit that it is usually at a reduced level to the level experienced initially after the acoustical trauma (which is consistent with the applicant's history).
With respect to the applicant's "general sensitivity to sound" or, as was put to Dr Carroll, her evidence that "all sounds produced an abnormally loud sound in her ear", Dr Carroll concurred with Dr Crisp's view that this was not recruitment for the same reason, namely, because recruitment is not characterised by the patient's perception of hearing all sounds, including soft sounds such as the sound of one's own voice at normal conversational volume, at a louder level. Rather, he said that recruitment should only elicit this response with loud sounds. Dr Carroll then stated that, in his opinion, there was no known organic cause or medico-scientific explanation for this symptom. That being the case, Dr Carroll postulated that it was more likely to have a psychological origin, describing the condition as "phonophobia", or fear of noise.

With respect to the applicant's other two auditory symptoms, namely, difficulty distinguishing the nature of sounds and the direction of them, Dr Carroll's view accorded with that of Dr Crisp in so far as he said that they were related to her hearing loss.
The Tribunal also had before it several reports of Dr Chapman who was not called to give oral evidence before the Tribunal. In his reports, Dr Chapman concludes that the applicant has a 5% permanent impairment arising from tinnitus and permanent high frequency hearing loss in her left ear, the extent of which was not assessed by him. Dr Chapman also diagnosed the applicant as suffering from permanent recruitment.
Tribunal's Consideration of the Issues
In considering the evidence and the issues in dispute before the Tribunal, the Tribunal has had regard to the totality of the material placed before it including the submissions made by the parties and the authorities referred to therein. In so far as the parties' submissions are concerned, the Tribunal will refer to them as they become relevant in the course of the Tribunal's consideration of the issues.
The Tribunal has, of course, had the advantage of carefully observing and/or listening to the witnesses who gave oral evidence before it. The applicant was an impressive witness. Throughout the giving of her testimony, the Tribunal gained the distinct impression that she did her best to accurately and honestly depict to the Tribunal the nature and extent of her symptomatology and the effects it has had from time to time on various aspects of her life. The Tribunal notes that there was no suggestion whatsoever by the respondent that the applicant's account of the events in question should not be accepted by the Tribunal, nor has the Tribunal found any justification for doubting the reliability of her testimony. The Tribunal accepts the totality of the factual matters deposed to by the applicant, and makes the following findings of fact:
(a)The applicant experienced no trouble with her hearing prior to the incident involving the starting pistol;
(b)At the present time, the applicant experiences noise in her ears which is most noticeable during quiet periods;
(c)At the present time, the applicant experiences all sounds at an abnormally loud volume;
(d)At the present time, the applicant has difficulty identifying the nature of certain sounds;
(e)At the present time, the applicant has difficulty identifying the direction from which sounds are coming from;
(f)Each of the applicant's symptoms above became evident shortly after the incident and have persisted to this day.
Turning to the medical evidence, the Tribunal found Dr Carroll to be an impressive expert witness. He was objective and well-reasoned in the forming of his opinions and in the giving of evidence before the Tribunal, and the Tribunal has no hesitation in accepting his opinions wherever relevant. Whilst the Tribunal was also impressed with Dr Crisp's evidence in respect to the applicant's tinnitus and her hearing loss and associated symptoms (difficulty in distinguishing the nature and direction of sounds), the Tribunal does not have quite the same degree of confidence in his opinions with respect to her remaining symptom, namely, that she hears all sounds louder, in light of his acknowledgment during evidence that he would require more time to examine the applicant to "get to the bottom" of the exact nature of the relevant condition. Hence, the Tribunal has preferred to rely on the evidence of Dr Carroll to that of Dr Crisp, wherever there may be said to be variance between them. That being said, the Tribunal notes that at the end of the day, there was little divergence of opinion between the views ultimately expressed by Drs Crisp and Carroll in their oral evidence.
Turning to Dr Chapman, clearly, in the forming of his opinion, he did not have the same opportunity as Dr Crisp and Dr Carroll to consider and comment upon the additional matters and symptoms outlined by the applicant in her oral evidence before the Tribunal which were not previously evident from any of the material. In this respect, the Tribunal does not consider that the contents of a letter to Dr Chapman from the applicant's solicitor dated 22 November 1999 adequately depicted the applicant's oral evidence before the Tribunal, nor is Dr Chapman's reply of the same date (collectively Exhibit A5) a substitute for the oral evidence which is likely to have been forthcoming from him had he the opportunity of giving evidence in person, and had the respondent and the Tribunal had the opportunity of asking questions of him. For example, the Tribunal has little doubt that had Dr Chapman been adequately apprised of the nature of the applicant's oral evidence, he would not have continued to maintain, as he did in his report dated 22 November 1999, that the applicant suffers from permanent recruitment. For these reasons, the Tribunal has not relied upon the opinions of Dr Chapman wherever they might be said to be at variance with those of the other medical witnesses who gave oral evidence before it.
Turning to a consideration of the issues, it was not disputed by the respondent that in the course of the starting pistol discharging next to her left ear, the applicant suffered "acoustical trauma" to her left ear which constitutes an "injury" for the purposes of s4(1) of the Act. It was also not in dispute that the injury has resulted in permanent impairment, namely, hearing loss in the applicant's left ear (which the parties agree attracts an assessment of 0.7% whole person impairment under Table 7.1) as well as tinnitus.
Once there is established on the material a compensable injury which has resulted in a permanent impairment, it follows that the respondent has a prima facie general liability to pay compensation to the worker in respect of the injury pursuant to s24 of the Act. The amount of compensation payable is then assessed as against the "degree of permanent impairment", expressed as a percentage, which is determined under the provisions of the Guide. The respondent's general liability to pay compensation for an injury which results in a permanent impairment under s24 is subject, of course, to the exception in s24(7). This section provides that compensation is not payable under s24 where the degree of permanent impairment of an employee is less than 10%.
It was the respondent's submission in this case that the applicant's degree of permanent impairment from tinnitus and hearing loss did not reach the 10% threshold. However, in addition to these two accepted permanent impairments, the applicant also contends for another unspecified impairment (or impairments) characterised by the three additional symptoms experienced by her subsequent to the injury, namely, difficulty with distinguishing the direction from which sounds are emanating, difficulty with distinguishing the nature of sounds and hearing all sounds at an abnormally loud volume.
In this respect, the respondent submitted that the first two symptoms, namely, difficulty distinguishing the nature and direction of sounds were part and parcel of the hearing loss suffered by the applicant and assessed under Table 7.1 of the Guide. The respondent's submission was that being "hearing defects", they were clearly to be assessed under Table 7.1 and, consequently, there could be no other table which applied to them. This left the remaining symptom of hearing all sounds at an abnormally loud volume. Mr Polin submitted that if the Tribunal was to accept Dr Carroll's evidence to the effect that there was no known medical or scientific basis or cause to the condition, then that should be the end of the matter as the Tribunal could not then find that the condition was permanent or was causally related to the applicant's employment. However, assuming that the Tribunal was to find that the applicant's symptomatology constituted a permanent impairment, Mr Polin submitted that it did not fit within any of the Tables in the Guide. Mr Polin submitted that neither Tables 7.1 or 7.2 covered this condition, nor did it fit within Table 13.1 as was the applicant's submission.
On the other hand, Mr Corr submitted, on behalf of the applicant, that despite there being an absence of an identifiable pathology for the applicant's additional symptoms, a clear inference could be drawn from the material before the Tribunal that these symptoms constitute a permanent impairment to the applicant's auditory system which has arisen as a consequence of the work-related injury to her left ear. He submitted that Table 13.1 was the appropriate table for the assessment of the degree of the permanent impairment. In this regard, he relied upon the evidence of both medical practitioners to the effect that an "attack" was an episode catalysed by an external stimulus and of limited duration, which, he said, applied in the applicant's case, namely, every time she hears a sound it triggers an abnormally loud response. He also submitted that these so-called attacks caused minor interference with the applicant's activities of daily living, namely, her ability to receive and respond to incoming stimuli, such that a 10% assessment under Table 13.1 was appropriate.
The Tribunal now turns to consider whether or not the applicant can be said to have any other permanent impairment in addition to tinnitus and hearing loss arising from the compensable injury. In short, having regard to the evidence of Dr Carroll which was that each of the applicant's three residual symptoms falls individually, as well as collectively, to be described as a "malfunction" of the "auditory system", the Tribunal finds that each symptom fits squarely within the description of "impairment" in the Act.
In respect of the applicant's hearing of all sounds at an abnormally loud volume, the respondent submitted that even if it could be described as an "impairment", as there was no known organic or medico-scientific basis to the condition, the requisite causal link between it and the compensable injury could not be established on the material before the Tribunal. The Tribunal was not persuaded by this submission. The Tribunal's view is that in light of its findings of fact, namely, that the applicant suffered no hearing problems prior to the injury, that she began to experience the subject symptom shortly thereafter and that it has persisted ever since, it is entirely reasonable to infer, as the Tribunal has in this case, that the impairment to the applicant's auditory system, as characterised by the symptom of hearing all sounds at an increased volume, is causally related to the injury which she suffered on 1 September 1995. In so doing, the Tribunal has rejected the suggestion that because there is no known pathology or organic basis to the relevant impairment, the Tribunal is precluded from finding the necessary causal link between it and the compensable injury. In a case such as this where there has been no history of symptoms prior to a compensable injury, where the fact of the injury is not disputed, where the Tribunal accepts the genuineness of symptoms as reported by the applicant, and where there is no other explanation proffered for the existence of the symptoms, the Tribunal is clearly at liberty to draw on the balance of probabilities, as it has in this case, a reasonable inference as to the existence of the necessary causal link between injury and impairment.
In arriving at this conclusion, the Tribunal has found apposite the following observations of Bright J in the Supreme Court of South Australia (Dibbins v Dibbins [1978] LSJS 165):
"This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient's account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient."
In summary, the Tribunal is satisfied, on balance, that in the course of the pistol discharging next to her left ear, the applicant suffered a compensable injury to her left ear as defined in the Act, which, in addition to permanent impairment in respect of hearing loss and tinnitus, has resulted in further impairments to her auditory system, as characterised by the three additional symptoms which have been accepted as genuine by the Tribunal.
The Tribunal now turns to consider the permanency of each impairment so defined. In this respect, the Tribunal must be satisfied, on balance, that each impairment is permanent i.e. "likely to continue indefinitely" – s4(1). In addition to the definition of "permanent" in s4(1), s24(2) outlines three specific factors as well as "any other relevant matters" which the respondent, and the Tribunal in the shoes of the respondent, shall have regard to for the purpose of determining whether an impairment is permanent.
The Tribunal is mindful that in light of the definition of "permanent" in the Act, a distinction must be drawn between permanent in the sense of meaning "forever", and permanent in the sense of meaning "likely to continue indefinitely" (see discussion in McDonald v Director-General of Social Security (1984) 6 ALD 6). Clearly, in accordance with the definition in s4(1) of the Act, the latter meaning of the word is applicable here. The Tribunal also notes that in the forming of its view as to whether each impairment of the applicant's auditory system as characterised by the three additional symptoms is "likely to continue indefinitely", it is to apply the ordinary standard of proof on the balance of probabilities. In this regard, the Tribunal has had regard to McDonald v Director-General of Social Security (1984) 6 ALD 6, a case in which the Federal Court considered the question of whether or not the Tribunal had correctly instructed itself as to the meaning of "permanent incapacity" in the Social Security Act 1947. Relevantly, Woodward J, at p14, with whom Northrop and Jenkinson JJ agreed, said:
"… There will be many cases in the difficult borderline region between temporary and permanent incapacity where the … AAT will have to decide which is the more appropriate description. It is not necessary to have a "settled expectation" of permanency before so finding; a belief – even on a fine balance – that indefinite duration is more likely than foreseeable termination, will suffice."

Whilst the Tribunal would readily acknowledge that the phrase "permanent incapacity" as considered by the Federal Court in McDonald (supra) appeared in a different statutory context to that in issue here, the Tribunal's considered view is that the principle annunciated by the Court is apposite to the phrase "permanent impairment" in the Act. Clearly, having regard to the definition in s4(1), it is not the respondent's, or the Tribunal's task, to satisfy itself beyond doubt that an impairment will continue forever. In many cases, this would be impossible, particularly so considering the possibility of there being new developments in science and medicine and new methods of treating conditions previously thought to be permanent. Rather, it will be sufficient if, on the current state of medical knowledge, the impairment is likely to continue for some indefinite i.e. indeterminate or unlimited, period of time in the future.

Turning to the facts of this case and, taking the first two of the applicant's additional symptoms, namely, difficulty with distinguishing the nature of sounds and difficulty with distinguishing the direction from which sounds are emanating, the Tribunal finds, having regard to the evidence of the medical practitioners who gave oral evidence before it, that they are manifestations of the applicant's unilateral permanent hearing loss. As the applicant's hearing loss is permanent, it must follow that these impairments are also permanent within the meaning of the Act and the Tribunal so finds.
For the purposes of determining whether the third of the impairments to the applicant's auditory system i.e. that characterised by her hearing of all sounds at an abnormally loud volume, is permanent, i.e. likely to continue indefinitely, the Tribunal has had regard, first, to the duration of the impairment (s24(2)(a) of the Act). On the applicant's evidence, the duration is in excess of four years. Turning next to s24(2)(c) of the Act, the Tribunal would note that there is nothing before it to suggest that the applicant has not undertaken all reasonable rehabilitative treatment for the impairment as characterised by the subject symptom. Turning to the "likelihood of improvement in the employee's condition" (s24(2)(b) of the Act), the Tribunal would indicate that there was little evidence before it to indicate the likelihood, if any, of the impairment improving or terminating in the foreseeable future (nor could there be such evidence in light of the unascertained aetiology of the condition). Bearing all relevant factors in mind, and giving appropriate regard to the other manifestations of the compensable injury, namely, tinnitus, hearing loss and its associated symptoms which have all been accepted as permanent, the Tribunal is satisfied on balance that it is more probable than not that the impairment to the applicant's auditory system as characterised by her hearing all sounds at an abnormally loud volume is also likely to continue indefinitely. If follows that the impairment is permanent within the meaning of the Act.
Having found that the compensable injury to the applicant's left ear has resulted not only in permanent hearing loss and tinnitus, but in three other permanent impairments to her auditory system as characterised by the three additional symptoms, the Tribunal now turns to consider the appropriate degree of permanent impairment under the provisions of the Guide. This will involve consideration of the degree of permanent impairment of the applicant's tinnitus and each of the other permanent impairments now established on the material before the Tribunal.
In so doing, the Tribunal has kept foremost in its mind that the Guide is not to be applied so as to limit the purpose of the Act which is to provide compensation for injuries which result in a more than minor permanent impairment. To this end, in a joint judgement in Whittaker v Comcare (1998) 28 AAR 55), Drummond, Cooper and Finkelstein JJ held at p68:
"A number of points can be made from the statutory context of the Guide. The first is that the general principle of the Act, in so far as it makes provision for Commonwealth employee compensation, is that contained in s 24(1), viz, that compensation is payable where an employee suffers an injury that results in a permanent impairment. The second point is that s 24(7) shows that it is only where Comcare determines, by applying the Guide, that the employee's degree of permanent impairment is less than 10% that the employee is disentitled to compensation in respect of the injury already determined to have resulted in permanent impairment. Only then will there be an exception to the general principle in s 24(1). The general legislative purpose or intent is that an employee who suffers injury causing more than minor permanent impairment is entitled to compensation. The third point is that it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in s 24(2) of the Act, that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only in so far as it contains the criteria by reference to which Comcare must assess the degree of that employee's permanent impairment. The Guide, which has this limited role, should not be allowed to limit the general legislative purpose."

Also relevant are the following comments of Olney J in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 16 AAR 241 at 248:

"Having regard to the definition of the term "impairment", to the provisions of ss 14 and 24, and to the particular purpose of the guide as provided in s 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it."

Dealing briefly with tinnitus first of all, having regard to the evidence which has been accepted by the Tribunal and, in particular, that of the applicant and Dr Carroll, and having regard to the provisions in Table 7.2, the Tribunal is satisfied, and so finds, that the applicant's tinnitus is properly to be assessed at the 5% level of whole person impairment as opposed to the 0% level.
The Tribunal now turns to consider the remaining three permanent impairments. At the outset, the Tribunal would indicate that in his oral evidence, Dr Carroll suggested that each of the impairments falls under the description of "hearing defects" which, as stated in the pre-amble to Table 7.1, are to be assessed in accordance with the current procedures from the Australian National Acoustic Laboratories.
Having regard to Dr Carroll's evidence, the inability of the applicant to determine where a sound is coming from has already been tested in accordance with the current procedures from the Australian National Acoustics Laboratories and is encompassed in the assessment of 0.7% under Table 7.1. Hence, the Tribunal need consider this symptom no further.
With respect to her difficulty distinguishing the nature of sounds and the hearing of all sounds at an abnormally loud volume, Dr Carroll's evidence was that there are no current procedures from the Australian National Acoustic Laboratories for assessment of the degree of impairment arising from these conditions. This, he said, was because of the laboratories' focussing on the testing of a person's ability to hear and understand speech as opposed to the testing of other aspects of hearing defects. Whilst there exist no procedures from the Australian National Acoustic Laboratories for the testing and assessment of these conditions, there is no way that a percentage assessment can be ascribed to them under Table 7.1. Prima facie therefore, they would attract an assessment of 0% under Table 7.2 of the Guide. However, bearing in mind the purpose of the legislation and its beneficial nature, the Tribunal is duty bound to consider whether the degree of permanent impairment may be assessed under another table or tables, and if more than one table applies, to apply the one which is most favourable to the employee (Whittaker v Comcare (supra)).
Mr Polin submitted that the impairments fall within the meaning of "other conditions … for which no medication is required" such that they should be assessed as 0% level under Table 7.2. The applicant submitted that a 10% assessment under Table 13.1 was appropriate.
The Tribunal now considers the applicability of Table 13.1. In forming its own view on this topic, the Tribunal has carefully considered the oral evidence of the medical practitioners together with the parties' respective submissions on this topic.
Relevantly, Dr Carroll defined "attack" to mean "an episodic event interspersed with periods of normality" and, on this basis, he accepted that the emergence of a symptom could be categorised, in medical terms, as an attack. Dr Carroll then went on to say that he had never used Table 13.1 to assess hearing impairments, and he had difficulty accepting that the applicant's condition could be described as an "intermittent condition". Dr Crisp, on the other hand, defined attack to mean "something that occurs spontaneously and is of a certain duration" and he opined that the onset of the applicant's symptoms were "not spontaneous attacks". Rather, they are "stimulated by a stimulus" and would cease upon withdrawal of that stimulus. In view of his definition of "attacks", Dr Crisp accepted, during cross-examination, that Table 13.1 was not appropriate for assessing the condition. It was accepted by Dr Carroll that assuming the onset of the applicant's symptoms to be an attack, they would cause minor interference with activities of daily living, namely, receiving and responding to incoming stimuli, but also standing and moving (on account of the applicant's evidence that she positions herself differently when listening to others).
At the outset, the Tribunal notes that the table is headed "miscellaneous" and that the preamble refers to "intermittent disorders such as asthma, migraine, tension headache, epilepsy etc" (emphasis added) meaning that use of the table is not to be limited to those disorders explicitly stated. Further, the Tribunal rejects the notion that a condition which is "constant" in a pathological sense but is only experienced by the sufferer on an intermittent basis, as would be the case with an impairment of the auditory system, will fall outside the meaning of "intermittent disorders". Clearly, asthma and epilepsy, like the applicant's condition, will be always present in the pathology of the patient, albeit that their respective symptomatologies are not experienced on a constant basis. Having regard to the ordinary meaning which is to be given to the phrase "intermittent disorder", namely, a derangement of the physical or mental functioning of, in this case, the auditory system (Macquarie Dictionary), or, an indisposition or infirmity of that system (Butterworths Medical Dictionary) which alternately ceases and begins again (Macquarie Dictionary), the applicant's condition falls within the meaning of an "intermittent disorder" and the Tribunal so finds.
The Tribunal has rejected the respondent's submission that the word "attacks" is not applicable to the applicant's experiencing of her symptoms. "Attack" is defined, relevantly, to mean "4. (of disease, destructive agencies etc.) to begin to affect. … 10. Pathol. seizure by disease." (Macquarie Dictionary, 3rd edition). Butterworths Medical Dictionary, 2nd edition, defines "attack" to mean "An access of illness or an episode in the course of a disease, usually of an acute or distressing nature." whilst Taber's Cyclopaedic Medical Dictionary defines it to mean "1. The onset of an illness or symptom, usually dramatic, e.g., a heart attack or an attack of gout. 2. An assault."
The Tribunal does not agree with Dr Crisp's opinion that the word "attack" can only apply to a "spontaneous" attack to the exclusion of that which is precipitated by a stimulus and ceases upon the withdrawal of that stimulus. The definition of the term is not so confined. Further, the Tribunal considers that although an episode which is characterised as an "attack" will usually be, as the definitions tend to suggest, "dramatic", "acute" or "distressing", it does not necessarily have to be so. Clearly, in the case of any given condition characterised by attacks, an episode of the most minor severity will still be referred to as an attack in so far as it is an "onset", or a "beginning" or an "access" of the condition or its symptoms; in normal parlance, the term "attack" is not limited to significant episodes but includes episodes of varying severity. Having regard to the beneficial nature of the legislation, the Tribunal prefers a broad interpretation of the word "attack" that encompasses any onset of symptomatology, as opposed to a narrower definition that would confine "attacks" to only significant episodes associated with particular medical conditions. Comcare, in the preparation of the Guide pursuant to s28 of the Act, could have given a restrictive definition to the term "attack" but has not done so.
Having regard to its interpretation of the term "attack", the Tribunal finds that each episode during which the applicant experiences a sound at an abnormally loud volume and each episode whereby the applicant has difficulty distinguishing the nature of a sound constitutes an attack. Having regard, then, to the evidence of the applicant, the Tribunal finds that she satisfies the criteria corresponding to a 10% degree of whole person impairment in so far as her attacks occur more than 12 times per year and cause minor interference with activities of daily living i.e., receiving and responding to incoming stimuli, and, to a lessor extent, standing and moving. In so finding, the Tribunal implicitly rejects the respondent's submission that on account of the frequency of the applicant's "attacks" which would be in the many thousands, the degree of permanent impairment must be towards the higher end of Table 13.1, a proposition which does not accord with a reading of Table 13.1 in its entirety.
As an assessment of 10% whole person impairment in respect of the two additional impairments under Table 13.1 is more favourable to the applicant than an assessment of 0% under Tables 7.1 or 7.2, the Tribunal has applied the former in preference to the latter.
Bearing in mind all determinations by the Tribunal as to the degree of the applicant's whole person impairment resulting from the injury, the Tribunal finds that the applicant's total whole person impairment is 16%. This figure is arrived at by combining, first, the assessments of 10% under Table 13.1 and 5% under Table 7.2 in accordance with the procedure outlined in Table 14.1, the Combined Values Chart, and then combining the resulting 15% impairment with the remaining figure 0.7% under Table 7.1 (rounded to the nearest whole number, that is, 1%).
For these reasons, the decision under review is set aside and, in substitution therefor, the Tribunal decides that:
(a)the applicant has a degree of permanent impairment of 16% resulting from the injury to her left ear;
(b)the matter be remitted to the respondent for calculation of the quantum of compensation payable to the applicant pursuant to s24 of the Act; and
(c)the respondent is to pay the applicant's costs reasonably incurred to be agreed or taxed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B H Burns
Signed:         .................D.M. WALKLEY.................
  Associate
Date/s of Hearing  22-23 November 1999
Date of Decision  2 March 2000
Counsel for the Applicant        Mr Corr
Solicitor for Applicant               Richards
Counsel for the Respondent    Mr Polin
Solicitor for the Respondent    Sparke Helmore