Blandthorn and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 1270

Blandthorn and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1270 (15 August 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/6183

Re:Brian Blandthorn

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:15 August 2017

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the recommendations contained in this decision.

[sgd]........................................................................

Miss E A Shanahan, Member

COMPENSATION – hearing loss – service in the Navy – exposure to noise – abnormal audiograms in service – high frequency loss of hearing – liability denied – remitted for reconsideration given inadequacy of assessment data

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Re Corcoran and Comcare [2015] AATA 776

REASONS FOR DECISION

Miss E A Shanahan, Member

15 August 2017

1. Mr Blandthorn lodged an application with the Military Rehabilitation and Compensation Service for compensation for hearing loss on 3 April 2014.  He had attributed his high frequency hearing loss to two periods of work while he was in the Navy and based at HMAS Cerberus (Cerberus), when he was exposed to shoots on and was unable to wear hearing protection.  Mr Blandthorn was unable to provide the dates of this exposure to gunshots and what he called the big gun firing.  All he could say was that he had spent 12 months exposed to such explosions in a gunnery two days a week; and then a further six months, again twice a week. During both periods he claimed he had been unable to wear appropriate hearing protection as it was his job to answer the telephone and open the gate and thus he needed to be able to hear the telephone ringing and the orders relayed.  While the respondent acknowledged that Mr Blandthorn had mild bilateral high frequency hearing loss, this had been determined to have no relationship to his employment in the Navy. 

2. Mr Blandthorn’s claim was rejected on 7 January 2015.  He requested a reconsideration of that determination. An authorised review officer affirmed the determination in September 2015.

3. Mr Blandthorn lodged his application for review of this decision with the Administrative Appeals Tribunal on 26 November 2015.

4. Mr Blandthorn was self-represented at the hearing on 19 April 2017. The respondent was represented by Ms Julia Lucas of counsel, who was instructed by Ms Nicky Nicolaou, solicitor for the Australian Government Solicitor. The Tribunal was provided with the documentation lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).   The applicant and the respondent tendered further documents,   a list of which is appended to this decision. 

   BACKGROUND TO THE APPLICATION

5. Mr Blandthorn enlisted in the Royal Australian Navy (the Navy) in 1991, when he was 20 years old.   He served until 1998.   He was initially an Able Seaman and later a Medic.  He was discharged on medical grounds.  He currently receives a military pension at 70 per cent of the current Defence Force salary.  His pension relates to a lumbar spine injury suffered while playing rugby for the Navy. This had necessitated spinal fusion in 2004. However, he has an ongoing chronic pain syndrome and secondary depression. 

6. The claimed period of noise exposure relates to his service at Cerberus and the West Head gunnery range.  While there as a Medic, he was required to man the main gate and was meant to wear hearing protection. But as his job was to answer the telephone and make telephone calls to get approval to open the gate, he could not comply with the requirement to wear hearing protection at all times.  As a result of his exposure to gunfire from the guns (and a large gun in particular) over a period of 18 months, he claimed a lump sum payment for permanent impairment of his hearing in the high frequency scale and the incurred medical expenses. 

7. While Mr Blandthorn states that he was exposed to gunfire and large gun firing for up to two days per week for a period totalling 18 months he could not provide the Tribunal with the dates of this exposure, as he had no access to his Defence Force file. 

8. He claims that he cannot hear people calling out to him from a distance; in particular, he cannot hear his daughter when she calls out to him from an upstairs or distant room.

9. Mr Blandthorn advised the Tribunal that he had undergone audiometry at regular intervals. As a medic, he had been required to perform such testing on other naval personnel himself.  He was thus familiar with the procedures required for audiometry. 

10. While it was not disclosed in either parties’ Statement of Facts and Contentions, the Tribunal’s questioning of Mr Blandthorn revealed that he had spent 11 months in 1992‑1993 serving in the Gulf War area, on a patrolling frigate and had later been involved in the so called Rim Pac (Pacific Rim) exercises conducted in the waters off Hawaii. The Rim Pac exercises have involved the navies of United States of America, New Zealand, Canada and Australia, every two years since 1971. 

11. These exercises were said to involve the detonation of major explosives and the firing of radar-controlled 76 millimetre guns, firing 2,500 rounds per minute.  During these exercises, the United States launched up to six and a half tonnes of missiles.  Mr Blandthorn was uncertain of the exact dates of these manoeuvres. 

12. Mr Blandthorn had undergone audiometry testing on his enlistment and this has set a baseline for further testing.  His hearing upon enlistment was considered to be within the normal range.  His enlistment data also records a left hand injury, namely a crush injury, resulting in fractures of his right second and third metacarpal bones requiring surgical treatment and loss of the distal phalanges of these fingers. In his oral evidence, he confirmed that throughout this six month period of employment as a sheet metal worker he had used earmuffs of high quality.  . 

13. Throughout his service in the Navy, Mr Blandthorn underwent several audiometry tests.  The audiometry test of 2 February 1993 was abnormal and he was referred for clinical assessment.  There is no report regarding any clinical assessment.   The Tribunal notes that this examination of 1993 was undertaken, according to the entry at T-4, because he had been serving overseas.  The audiogram appears to have found that Mr Blandthorn’s hearing in the high frequency range of the left ear had improved since the examination of 4 April 1990.  It was recommended that clinical assessment was required.  The greatest disparity from normal was in the six and eight thousand frequency kHz range in the left ear and to a lesser extent in the right ear.  Further audiometry performed in 1997 was reported as abnormal and requiring further clinical assessment; while that of 1998 was said to be within the normal range.  There was no evidence before the Tribunal that the audiometry results of 1997 were referred for clinical assessment.  Mr Blandthorn’s discharge audiometry was taken to be the audiometry performed on 17 September 1998, which was reportedly within the normal range. 

14. Since his discharge from the Navy on grounds of medical incapacity, Mr Blandthorn has undergone further audiometry.  The audiometry on 19 May 2005 revealed a mild hearing loss bilaterally.  When compared to the data from 1990 it revealed significant changes in the left ear and the right ear for frequencies in the 8000 kHz range.  This was however well compensated for, as his speech test results showed excellent discrimination at normal conversational levels.

15. Audiometry performed in Shepparton on 18 April 2016 revealed mild high frequency sensori-neural hearing loss bilaterally.  Speech discrimination was excellent at normal conversational levels. 

16. On 14 March 2014 a screening audiogram was performed in Shepparton but only assessed his hearing between 500 and 4000 kHz.  This revealed bilateral abnormalities. No report accompanies the actual test figures, the results having been referred to Australian Hearing in Melbourne, which assessed Mr Blandthorn on the contents of the file lodged for the compensation claim.  This assessment was conducted by Mr R Webb, an Ear Nose and Throat (ENT) surgeon and a Compensation Audiologist, Mr E Mougerman (T 9, page 44).

17. The assessment took place on 17 December 2014 and used the audiometry data recorded on 14 March 2014 in Shepparton.  This was compared with Mr Blandthorn’s discharge audiogram of 10 September 1998.  As previously stated the audiogram of 14 March 2014 did not test Mr Blandthorn’s hearing in the high frequency range despite this being the basis of his claim.  The report of Mr R Webb, the ENT surgeon, used the pro forma which contains six questions. Mr Webb provided a diagnosis of hearing loss of uncertain cause: unrelated to his Commonwealth employment.  He did not address questions 4, 5, and 6 of the pro forma report. The only comment made was that the discharge audiogram of 1998 did not show any significant hearing loss. 

18. The audiologist Mr Mougerman’s report was also short, recording the total percentage loss of hearing as 9.3 per cent, with the percentage of loss attributable to Commonwealth employment being 0.0 per cent. 

19. Mr Blandthorn gave evidence before the Tribunal that he had lodged a complaint with the Australian Health Professional’s Regulatory Agency (AHPRA), that Mr Webb had not actually seen him in order to provide this report. According to Mr Blandthorn, his complaint had been dismissed on the grounds that Mr Webb denied the claim that he had not assessed Mr Blandthorn in person. 

20. The Tribunal was provided with the summonsed records of two general practices that Mr Blandthorn had attended over the years. These were of no assistance as they dealt almost exclusively with his back complaint and back pain, his lumbar vertebral fusion at L4/5, ongoing depression and anxiety, and chronic pain syndrome, which had been treated for many years with opioids. 

21. The Tribunal had access Mr Blandthorn’s 2014 application to this Tribunal relating to his musculoskeletal condition but no records of his naval service were enclosed in that file.  However, a report from an occupational physician recorded that following his enlistment in 1991, Mr Blandthorn underwent training as a seaman for a period of twelve weeks at the Cerberus base, following which he spent 14 months on the HMAS Success and then eight months on the HMAS Canberra.  It would appear that this service was overseas service.  From 1993 to 1997 it was said that he had been based at Cerberus and in the initial 20 weeks of this deployment underwent 20 weeks of training and became a Registered Division II Nurse.  Thereafter, he remained at Cerberus performing ward work until 1997, when he transferred to the HMAS Sydney as a Medic. His discharge on medical grounds was reportedly related to a severe viral infection.

    RELEVANT LEGISLATION

22. The Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides s 14 that:

    14  Compensation for injuries

    (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)Compensation is not payable in respect of an injury that is intentionally self inflicted.

    (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.

23. Of major relevance in this matter are the definitions of an injury and a disease as contained in s 5 of the SRC Act.

24. The term injury is defined in s 5A as:

    5A  Definition of injury

    (1)In this Act:

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

    and a disease is defined in s 5B as:

    5B  Definition of disease

    (1)In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)In this Act:

    significant degree means a degree that is substantially more than material.

25. Prior to 13 April 2007, the definition of a disease was the same as in the current SRC Act but in s 5B(1)(b) regarding aggravation of such an ailment, the test was then to a material degree not a significant degree. 

    SUBMISSIONS.

26. Both parties relied on their written submissions.

27. Mr Blandthorn stressed that as he did not have access to his personnel file he did not know the exact dates of his service at HMAS Cerberus and the Gunnery Range, which formed the basis of his application. The latter related to hearing loss at high frequencies.

28. The Respondent contended that there was no corroborative evidence before the Tribunal in support of Mr Blandthorn’s contentions regarding noise exposure. It confirmed that the test to be applied was that relating to a disease/ailment aggravated to a material degree by employment. The Respondent relied on the report of Mr Webb and Mr Mougerman.

29. Ms Lucas cited the Tribunal’s decision in Corcoran and Comcare, where Senior Member Walsh considered whether Mr Corcoran’s hearing loss was an injury or a disease; and that where a condition has characteristics such that it may be considered as either, there was a need to establish a sudden change in the underlying pathophysiology for the condition to constitute an “injury” as distinct from a “disease”.  Mr Corcoran’s hearing loss had been diagnosed as presbycusis, a degenerative change associated with age. Mr Corcoran was 64 years old at the time of his application and had spent 34 years employed by Airservices Australia.

    TRIBUNALS DETERMINATION AND CONSIDERATIONS

30. Mr Blandthorn’s claim is for high frequency hearing loss due to noise damage.  The evidence before the Tribunal is lacking in that his complete service personnel file has not been produced by the Respondent in order to confirm or negate Mr Blandthorn’s overseas service in the 1^st Gulf War zone and his Rim Pac naval involvement and his noise exposure at those deployments.

31. Mr Blandthorn’s enlistment audiometry thresholds have been used throughout as the reference base. In 1993 and 1997 the tests were said to be abnormal, and that clinical assessment was required. While the Tribunal doubts the accuracy of some of the testing, it is not the Tribunal’s role to interpret such data. The 1997 audiogram was repeated the day after the abnormal result was obtained with a considerable improvement in the left side and moderate improvement on the right. No explanation was proffered for this overnight change. The pre-discharge audiogram did not show any significant abnormality. The 2005 study when compared to  the 1990 study shows a plus 30 db rise in threshold at 8000 Hz interpreted as a mild bilateral hearing loss given his excellent speech discrimination at normal conversational levels i.e. at lower frequencies (1000 to 3000 range). This study was not compared with his levels in 1990, although by doing so a threshold change of plus 30 decibels is present in the right ear. The most recent audiogram (A1) of 18 April 2016 shows mild high frequency sensori-neural hearing loss bilaterally.

32. The 2014 study commented on by Mr Webb, otolaryngologist, was done by another centre in Shepparton. Mr Blandthorn was not assessed by Mr Webb. The report was done on the compensation file and did not consider audiometry thresholds above 4000 Hz. There is no clinical assessment of the Applicant. It is noted that he was discharged from the Navy on medical grounds. His earlier AAT and this file refer to a post-viral syndrome without detail being provided. Viral infections are a documented cause of hearing loss.

33. The Tribunal notes Professor Black’s advice to the Department of Defence in 1996 (Exhibit R3) regarding noise trauma and presbycusis. The age related degenerative hearing loss is said to commence at about 50. Mr Blandthorn was 22 when the first abnormal audiogram was recorded and at the date of assessment in 2014 he was aged 43.

34. The Tribunal finds that the lack of clinical assessment from 1993 onwards is such that it is impossible to meet the initial requirement that it determine whether Mr Blandthorn’s hearing loss is an injury due to noise exposure, or an unrelated ailment and therefore not compensable. While the Tribunal considers Mr Blandthorn’s hearing at normal conversation levels has not been materially affected, his high frequency documented loss (at 6000 to 8000Hz) has not been addressed; and his exposure to noise during the Pac Rim exercises and the Gulf War zone service has not been mentioned, let alone considered. Based on the advice of Professor Black, it is difficult to accept that the documented albeit mild hearing loss is presbycusis. If determined to be an injury, s 14 liability at least may be attracted.

35. The Tribunal sets aside the decision and remits the matter to the Respondent for reconsideration in accordance with the above reasons.

I certify that the preceding 35 (thirty‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

[sgd]........................................................................

Associate

Dated: 15 August 2017

Date of hearing:	19 April 2017
Applicant Self-Represented:	Mr Brian Blandthorn
Counsel for the Respondent	Julia Lucas
Solicitor for the Respondent	Nicky Nicolau – Australian Government Solicitor

APPENDIX

Applicant

A1Goulburn Valley Health Audiology Report dated 18 April 2016.

Respondent

R1T-Documents.

R2Audiology Report dated 19 May 2005.

R3Report of Professor Black in relation to Departmental Policy on Hearing "Damage".