Bluescope Steel (AIS) Pty Ltd v Sekulovski - [2018] NSWWCCPD 48

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Leave to appeal refused with costs - Bluescope Steel (AIS) Pty Ltd v Sekulovski [2019] NSWCA 136
CITATION:	Bluescope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48
APPELLANT:	Bluescope Steel (AIS) Pty Ltd
RESPONDENT:	Radomir Sekulovski
INSURER:	Self-insured
FILE NUMBER:	A1-1525/18
SENIOR ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	6 June 2018
DATE OF APPEAL DECISION:	9 November 2018
SUBJECT MATTER OF DECISION:	Power to determine the appeal “on the papers” – s 354(6) of the Workplace Injury Management and Workers Compensation Act1998; Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 applied; whether need for hearing aids reasonably necessary as a result of injury – s 60(1)(a) of the Workers Compensation Act 1987; Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Whitelaw McDonald
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s Certificate of Determination dated 6 June 2018 is confirmed.

INTRODUCTION

Radomir Sekulovski made a claim against his former employer, Bluescope Steel (AIS) Pty Ltd (Bluescope), for the cost of digital hearing aids. He was employed by Bluescope from 1965 until 31 October 2000. It was not disputed that his employment was noisy.
Bluescope disputed the claim for hearing aids in a notice dated 10 April 2017 issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed that hearing aids were reasonably necessary as a result of Mr Sekulovski’s compensable hearing loss. It also alleged that the claim was deficient because it was not supported by medical opinion.
Mr Sekulovski subsequently served a medical report dated 6 July 2017 from Dr Sharade Tamhane, ear, nose and throat specialist, who supported the need for digital hearing aids.
Bluescope issued a further notice pursuant to s 74 dated 3 November 2017, disputing that hearing aids were reasonably necessary as a result of Mr Sekulovski’s noise induced hearing loss.

BACKGROUND

Mr Sekulovski previously made a number of claims for lump sum compensations pursuant to s 16 of the Workers Compensation Act 1926 (the 1926 Act) and s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of his hearing loss.
He received compensation for the following losses attributable to noisy employment:
(a)    22 November 1983 – 0.4% left ear (which equated to .08% binaural loss);
(b)    9 February 1988 – a further 2.7% binaural loss;
(c)    11 September 1991 – a further 2.3% binaural loss, and
(d)    2 July 1993 – a further 3.3% binaural loss.
The total binaural hearing loss for which Mr Sekulovski received lump sum entitlements was 8.38%.
Mr Sekulovski made a further claim pursuant to s 66 in 2001. As a result of that claim, Mr Sekulovski underwent a medical panel assessment in accordance with s 122 of the 1998 Act.
The Panel issued a certificate assessing Mr Sekulovski’s binaural hearing loss as 1.9%. Pursuant to s 122(6) of the 1998 Act, that certificate was conclusive evidence as to the matters certified.

ON THE PAPERS

Mr Sekulovski is content for the appeal to be determined “on the papers”.
Bluescope seeks an oral hearing of the appeal. It asserts that an oral hearing is necessary in order to “address a number of misconceptions commonly encountered in claims for hearing aids, such misconceptions being replicated in the decision appealed from.”[1]
[1] Bluescope’s submissions, p 1, [2.3].
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
That is, once the Presidential member is satisfied that there is sufficient material upon which the appeal can be determined on the papers, the Commission’s power to conduct an appeal on the papers is enlivened.[2] The power is a discretionary power.
[2] Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 (Barrow), [94].
Practice Direction No 1 of the Workers Compensation Commission Practice Directions, as it was at the relevant time, provided that it is the responsibility of the parties to ensure that the Presidential member is properly and comprehensively informed in writing of the grounds of and issues on appeal. Any objection to a determination on the papers must be clearly stated and supported by specific and cogent reasons. It is a matter for the Presidential member who is allocated the appeal to decide whether the matter is suitable for determination on the papers.
An appellant is not entitled to presume that a request for an oral hearing will receive a favourable response.[3] As Mason P said in Barrow:
“The submissions that the Presidential member was in some way obliged to ‘seek clarification of the way in which the Appellant contended its submissions were relevant’ … seeks to impose a duty on which the statute is silent. Procedural fairness does not require this of a decision-maker: a reasonable opportunity to advance arguments is all that is required in a context where the issues are known or (as here) formulated by the party in question.”[4] (emphasis in original)
[3] Barrow, [96].
[4] Barrow, [98].
Bluescope has filed submissions in support of its appeal and has had the full opportunity to advance its case through those submissions. It has had the opportunity to respond to submissions made by Mr Sekulovski. Bluescope has not identified the “misconceptions commonly encountered” that it refers to and gives no reasons why it could not have addressed those alleged misconceptions in its substantive submissions in writing. Bluescope does not identify any legal concept or argument that might be better dealt with by oral argument.
I have had regard to Bluescope’s request for an oral hearing. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. This is the appropriate course in the circumstances.

THRESHOLD MATTERS

The Application – Appeal Against Decision of Arbitrator (the appeal) was filed on 29 June 2018, within the time prescribed by s 352(5) of the 1998 Act. There is no issue raised in respect of whether the threshold requirements to appeal pursuant to s 354(3) of the 1998 Act have been met.

THE EVIDENCE

Mr Sekulovski provided an undated statement in which he described the noisy aspects of his employment with Bluescope.[5] He said he had not worked since leaving Bluescope in 2001. He stated that when he was at work, he had noticed that he had difficulty hearing normal conversation. He further stated that he turned the volume on the television up. He was speaking so loudly that he was nearly yelling and he had ringing in his ears. He said in order to communicate, he would have to be face to face with the other person and they would have to speak quite loudly to him.
[5] Application to Resolve a Dispute (ARD), pp 55–56.
Mr Sekulovski relied on the report of Dr Tamhane dated 6 July 2017.[6] Dr Tamhane took a history of Mr Sekulovski’s symptoms, his noisy employment and of prior assessments. Dr Tamhane performed an examination and conducted an audiological assessment.
[6] ARD, pp 1–4.
Dr Tamhane opined that:
(a)    although noise induced hearing loss usually affects frequencies between 2000 Hz and 4000 Hz, the length of Mr Sekulovski’s exposure, together with the distribution of the hearing loss led Dr Tamhane to attribute the sensorineural hearing loss from the 500 Hz frequency to 4000 Hz to noise induced loss;
(b)    Mr Sekulovski’s employment exposed him to a real risk of suffering noise induced hearing loss;
(c)    in the context of the significant noise exposure during his employment, the hearing loss was noise induced;
(d)    his binaural hearing loss was 7.1%, and
(e)    he would benefit from well trialled and appropriately fitted bilateral hearing aids.
Dr Tamhane said that digital hearing aids would assist Mr Sekulovski in noisy environments where he would have difficulty with speech discrimination and understanding speech. The hearing aids would also benefit Mr Sekulovski while driving or being a pedestrian for safety reasons. Dr Tamhane attached a copy of the audiogram dated 3 July 2017.
Ms Anne Dunne, graduate audiologist, provided a quotation for the hearing aids.[7] She said that the Pure 5 Binax device was the most suitable, because of Mr Sekulovski’s difficulties hearing where there is background noise, and that it would give clarity to softly spoken voices. She said the device would assist in reducing unwanted noise.
[7] ARD, p 7.
Attached to the ARD was also a bundle of documents relating to Mr Sekulovski’s previous claims, including past audiograms.[8]
[8] ARD, pp 23–37.
The bundle of documents also included a report from Dr Harold Waldman, ear nose and throat surgeon dated 29 August 1996,[9] and the Medical Panel Certificate (MAC) dated 21 August 2002.[10]
[9] ARD, p 38.
[10] ARD, p 41.
Dr Waldman said that Mr Sekulovski had been exposed to noisy work for 31 years. He said that, assuming the noise levels were above 85 dBA, it was possible that the sensorineural element of the hearing loss was potentially noise induced. He assessed the binaural loss as 2.4% and took the view that hearing aids were not necessary.
The Medical Panel, constituted by Dr A.N. Wiles and Dr A. M. Bryson, certified that Mr Sekulovski suffered from 1.9% binaural hearing loss, after deduction for presbycusis. The individual losses before deduction for presbycusis were 5% in the left ear and 6% in the right ear. The losses for each ear after deduction were 2% and 3% respectively. They further certified that Mr Sekulovski suffered from no other loss of hearing due to conditions other than boilermaker’s deafness or some other deafness of like origin.
Bluescope did not rely on any documentation, other than the evidence filed by Mr Sekulovski.

Submissions to the Senior Arbitrator

In accordance with a direction issued by the (then) Senior Arbitrator dated 1 May 2018, both parties filed written submissions.

Bluescope’s submissions

Bluescope submitted that Mr Sekulovski’s last claim for compensation pursuant to s 66 of the 1987 Act was over a year after he ceased employment with Bluescope. That claim resulted in the Medical Panel certifying that Mr Sekulovski’s compensable binaural hearing loss was 1.9%.
Bluescope said the past payments were all voluntary in nature, so that no estoppel arose in respect of those settlements. Bluescope referred to s 122(6) of the 1987 Act, which provided that the MAC was conclusive evidence as to the matters certified.
Bluescope further referred to the opinion of Dr Tamhane, who assessed Mr Sekulovski as suffering from 7.1% binaural hearing loss and recommended the provision of bilateral hearing aids. Bluescope conceded that if Mr Sekulovski’s noise induced hearing loss was 7.1%, then the provision of hearing aids would be justified.
Bluescope submitted that because Dr Tamhane’s assessment was contrary to the binding MAC, it must be rejected. Consequently, as Dr Tamhane’s opinion in respect of the need for hearing aids was dependent upon that assessment, his opinion must be rejected. Bluescope contended that the matter could only proceed on the basis that Mr Sekulovski’s noise induced binaural hearing loss was 1.9%.
Bluescope said that it is not aware of any decision of the Commission where a “mere 1.9%” had been found to be sufficient to warrant hearing aids. It added that any deterioration in Mr Sekulovski’s hearing since ceasing employment could not be attributable to industrial noise, relying on Sukkar v Adonis Electrics Pty Ltd,[11] Manuel v BOC Limited,[12] and Eraring Energy v Brownlie.[13]
[11] [2013] NSWWCCPD 59.
[12] [2011] NSWWCCPD 20.
[13] [2008] NSWWCCPD 42.
Bluescope submitted that if hearing aids were considered necessary, it would be as a result of matters unknown and, or in the alternative, presbycusis, which Dr Tamhane assessed at 12.5%.
Bluescope referred to Mr Sekulovski’s statement and his complaints about the difficulties he was having with his hearing while at Bluescope. Bluescope contended that Mr Sekulovski’s evidence was inconsistent with the history recorded by Dr Tamhane that there was a “gradual deterioration in his hearing for the past many years.”[14] Further, Bluescope said that in any event, there is no medical opinion that the symptoms complained of were due to employment with Bluescope, nor was there medical opinion supporting the need for hearing aids.
[14] Bluescope’s submissions to the Senior Arbitrator, [13].

Mr Sekulovski’s submissions

Mr Sekulovski referred to the opinion of Dr Tamhane that Mr Sekulovski suffered from 7.1% binaural hearing loss and required hearing aids. He referred to the opinion of the audiologist, Ms Dunne, who also recommended hearing aids. He further referred to the assessment by Dr Waldman on 29 August 1996 that Mr Sekulovski suffered from 2.4% noise induced binaural hearing loss, but did not require hearing aids. Mr Sekulovski submitted that Dr Waldman’s opinion was irrelevant, as Mr Sekulovski had continued to work in noisy employment for a further four years after that assessment. Mr Sekulovski pointed out that the MAC did not mention whether hearing aids were necessary.
Mr Sekulovski emphasised that the complaints recorded in his statement were symptoms that arose during the course of his employment with Bluescope. He submitted that his complaints of difficulty hearing conversations, difficulty hearing the television, speaking loudly, needing to speak face to face and ringing in the ears all indicate that he required hearing aids when he ceased work on 31 October 2000. Mr Sekulovski submitted that Dr Tamhane was of the view that Mr Sekulovski required hearing aids to assist with speech understanding and discrimination and Ms Dunne recommended them to aid Mr Sekulovski in environments with background noise and to hear soft voices with clarity.
Mr Sekulovski said that he clearly requires hearing aids to help him with conversation in particular, and that he had significant problems at work in those situations, and subsequently. He referred to the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service,[15] where his Honour observed:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”[16]
[15] [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo).
[16] Bartolo, 238[C]–[D].
Mr Sekulovski submitted that there was no medical opinion (other than that of Dr Waldman, who was irrelevant) that hearing aids were not required. He further submitted that there is no requirement to meet a threshold of percentage binaural hearing loss for it to be considered that hearing aids are reasonably necessary. He said that the hearing loss must be shown to have arisen from his employment and the “usual tests” in relation to s 60 of the 1987 Act apply.[17]
[17] Mr Sekulovski’s submissions to the Senior Arbitrator, [19].

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator determined the matter on the basis of the evidence before her and the written submissions of the parties in accordance with s 354(6) of the 1998 Act.
The Senior Arbitrator noted the background of Mr Sekulovski’s previous claims and the finding of the Medical Panel in its certificate dated 21 August 2002. She further noted the assessment made by Dr Tamhane and the doctor’s recommendation that Mr Sekulovski have the benefit of hearing aids.
The Senior Arbitrator further noted Bluescope disputed that the hearing aids were reasonably necessary on the basis that the Medical Panel assessment was conclusive as to the extent of the hearing loss and that level of hearing loss was insufficient to warrant the provision of hearing aids.
The Senior Arbitrator listed the documents before her, which consisted of the ARD and attachments and the Reply to Application to Resolve a Dispute (the Reply). She indicated that she took into account that evidence in making her determination. She summarised the opinion of Dr Tamhane.
The Senior Arbitrator summarised the submissions of both parties.
In her reasons, the Senior Arbitrator noted that Dr Tamhane provided the necessary connection between Mr Sekulovski’s noise induced hearing loss and his employment, and that Dr Tamhane was of the opinion that hearing aids were required because of that loss.
The Senior Arbitrator referred to the claim for compensation made by Mr Sekulovski after he ceased work with Bluescope. She observed that the MAC was conclusive, so that Mr Sekulovski was not entitled to recover compensation, citing BHP Steel (AIS) Pty Ltd v Birtasac.[18]
[18] [1995] NSWCC 34; 12 NSWCCR 476.
The Senior Arbitrator said, however, that the MAC is only conclusive as to the extent of the hearing loss suffered. She said it does not deal with the question of whether the provision of hearing aids is reasonably necessary as a result of the injury.
The Senior Arbitrator referred to and discussed two arbitral decisions in which awards were made in favour of hearing aids in circumstances where the assessment of the binaural hearing loss was relatively low.
The first was her own decision in Delaqueze v Drum Reconditioners Pty Ltd,[19] in which the worker was assessed by an Approved Medical Specialist (AMS) as suffering a 4% binaural hearing loss after deduction for presbycusis. In that case, the respondent argued that the Workers Compensation Hearing Aid Fees Order 2014 (the 2014 Order) precluded payment for hearing aids when the assessment was less than 6% binaural hearing loss. The Senior Arbitrator found that the explanatory note to the Order was not binding and it was a matter for the Commission to determine whether the hearing aids were reasonably necessary in the circumstances of each case.
[19] [2014] NSWWCC 364 (Delaqueze).
The second decision, Mathews v State Rail Authority of New South Wales,[20] was a determination by Senior Arbitrator Snell (as he then was) in which the respondent raised the Workers Compensation Hearing Aid Fees Order 2015 (the 2015 Order). The 2015 Order was in similar terms in respect of the requirement that the binaural hearing loss be at least 6%. The worker suffered a 1.7% binaural hearing loss. The Senior Arbitrator in that case determined that hearing aids were reasonably necessary on the basis that the 2015 Order fixed a maximum amount for hearing aids and WorkCover NSW did not have the power to make an order determining liability.
[20] [2015] NSWWCC 243 (Mathews).
The Senior Arbitrator noted there was in place a 2018 version of the Workers Compensation (Hearding Aid Fees) Order, which required that hearing aids could be sought where the employment was a main contributing factor to the hearing loss. She observed that the status of the Order had not changed and could not impose a requirement that employment be the main contributing factor to the need for hearing aids.
The Senior Arbitrator said that it was not necessary to show that employment was the primary cause of the need for hearing aids, but in Mr Sekulovski’s case it probably was.
The Senior Arbitrator referred to the decision by Deputy President Roche in Murphy v Allity Management Services Pty Ltd,[21] in which the Deputy President considered whether the cost of surgery was reasonably necessary in circumstances where the worker had suffered a fall subsequent to the compensable injury. The Deputy President observed that, for the treatment to be compensable, the work injury did not have to be the only or substantial cause of the need for treatment. He said that the test was a common-sense test of causation and that what is required is that the injury made a material contribution to the need for the treatment.
[21] [2015] NSWWCCPD 49 (Murphy), [57]–[58].

The Senior Arbitrator reproduced s 60(1)(a) of the 1987 Act, and the requirement that the treatment be reasonably necessary as a result of the injury. She referred to the decision of Deputy President Roche in Diab v NRMA Ltd[22] in which the Deputy President dealt with the phrase “reasonably necessary.” The Deputy President referred to the criteria of reasonableness set out by Burke CCJ in Rose v Health Commission(NSW)[23] and described them as “useful heads for consideration.” His Honour said the central question remained as to whether the treatment is reasonably necessary.
[22] [2014] NSWWCCPD 72 (Diab), [88]–[90].
[23] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
The Senior Arbitrator considered the history provided to Dr Tamhane that Mr Sekulovski had difficulties with speech discrimination and understanding when there was background noise. She further noted Dr Tamhane’s opinion that Mr Sekulovski’s hearing loss was attributable to his noisy employment and that hearing aids would assist with the problems with speech discrimination and also, for safety reasons, when travelling as a driver or pedestrian.
The Senior Arbitrator found that Dr Tamhane’s report provided a sound basis to determine that the provision of hearing aids was reasonably necessary and as a result of his noise induced hearing loss.
The Certificate of Determination issued on 6 June 2018 records:
“1. Amend the name of the respondent to read ‘Bluescope Steel (AIS) Pty Ltd.’
2. The respondent is to pay the applicant’s s 60 expenses in respect of the supply and fitting of digital hearing aids recommended by Dr Tamhane.”

GROUNDS OF APPEAL

Bluescope appeals the Senior Arbitrator’s decision, alleging the Senior Arbitrator’s decision was affected by error of fact, law and discretion as follows:
(a)    in finding that Mr Sekulovski had discharged the burden of proving that the need for hearing aids was as a result of the injury (Ground 1);
(b)    by basing her determination on an assessment of 7.1% binaural hearing loss, when the binding opinion of the Medical Panel certified the loss to be 1.9% (Ground 2);
(c)    in finding that Dr Tamhane attributed the entirety of the hearing loss to industrial deafness (Ground 3);
(d)    in failing to address and apply binding authority with respect to the meaning of the phrase “as a result of injury,” (Ground 4) and
(e)    in failing to exercise jurisdiction by not addressing Bluescope’s submissions (Ground 5).

LEGISLATION

Section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
…
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

SUBMISSIONS

Bluescope’s submissions

Grounds 1 and 2

Bluescope concedes that Mr Sekulovski requires hearing aids, but disputes that the need for the hearing aids results from injury. Bluescope asserts that the matter must be dealt with on the basis that Mr Sekulovski suffers from 1.9% binaural hearing loss with a deemed date of injury of 31 October 2000.
Bluescope submits that this is so because the MAC dated 21 August 2002 is conclusively binding and Mr Sekulovski did not dispute that submission made to the Senior Arbitrator by Bluescope. Bluescope says that the Senior Arbitrator appeared to have accepted that to be the case, referring to her reasons at [22] of her decision and by also referring to Delaqueze and Mathews, where the assessments by the independent assessor were relatively low.
Bluescope refers to Dr Tamhane’s assessment of 7.1% bilateral hearing loss due to industrial deafness, which significantly exceeds the Medical Panel assessment. Bluescope submits that Dr Tamhane’s opinion that the need for hearing aids results from the injury is patently dependent upon the assessment of 7.1% loss.
Bluescope contends that Dr Tamhane’s opinion cannot be accepted, given it is an “impermissible challenge to the binding effect of the Medical Panel certificate”.[24]
[24] Bluescope’s submissions, p 3, [5].
Bluescope asserts that the Senior Arbitrator was in error in accepting Dr Tamhane’s opinion and that Mr Sekulovski failed to discharge the burden of proof that his need for hearing aids resulted from the injury.

Ground 3

Bluescope submits that the Senior Arbitrator’s finding that Dr Tamhane attributed all of the hearing loss to noise exposure is erroneous. It says that in fact, Dr Tamhane attributed 12.5% loss due to presbycusis. Bluescope submits that this is significant because the Senior Arbitrator never addressed the question of whether the need for hearing aids resulted from the injury, in particular whether the injury made a material contribution to the need for the hearing aids.
Further, Bluescope asserts that the Senior Arbitrator mistakenly accepted that the entirety of Mr Sekulovski’s loss was attributable to the injury.
Bluescope contends that the noise induced binaural hearing loss is 1.9% and that Dr Tamhane assessed the non-work-related hearing loss as 12.5%, attributable to presbycusis, which calculates to 658% of the work-related loss.
Bluescope further contends that the difference between the certified 1.9% loss and Dr Tamhane’s assessment of 7.1% is 5.2%, which must relate to additional gradually acquired non-work-related loss. When that 5.2% loss is added to the allowance for presbycusis, the total non-work-related loss is 932% of the work-related loss.

Grounds 4 and 5

Bluescope submits that the Senior Arbitrator’s discussion in relation to decisions dealing with low assessments was related to matters not put in issue. It says that its submission that there were, to its knowledge, no authorities dealing with such a low assessment was merely “no more than an obvious common-sense proposition”.[25] Bluescope says that it does not (and did not) contest the “trite” proposition that the extent of binaural hearing loss is not conclusive of issues arising under s 60 of the 1987 Act.
[25] Bluescope’s submissions, p 4 [11].
Bluescope submits that it is its case that there is no proper evidence (if any) that the need for hearing aids results from the injury. The injury must be taken to have resulted in binaural hearing loss of 1.9%. Bluescope submits that the Senior Arbitrator simply did not address that issue in her reasons.
Bluescope questions how the Senior Arbitrator could possibly have made a finding that the primary cause of Mr Sekulovski’s hearing loss was probably his employment.
Bluescope contends that Delaqueze is of no value as a precedent. Each case depends upon its own facts. It submits that what is required is an analysis of whether the work-related component materially contributed to the need for hearing aids, in this case in the face of significant non-work-related causes. Bluescope submits that the ratio decidendi in Delaqueze was that the 2014 Order purportedly prohibiting the payment of hearing aids for workers with less than 6% was not binding on the Commission.
In any event, Bluescope submits, the Senior Arbitrator in Delaqueze said that the basic assessment of the loss was still 9.9%. An award was made in favour of the worker because two practitioners found that the worker would benefit from hearing aids. Bluescope contends that there was no discussion in that case of the issue of whether the work-related loss made a material contribution to the required treatment.
In relation to the decision in Mathews, Bluescope says that that case is also distinguishable because it turned on its own facts (the “specifics” of an audiogram) and there was no evidence of non-work-related losses. Bluescope submits that there was also no consideration of whether the loss made a material contribution to the need for hearing aids.
Bluescope says that the Senior Arbitrator referred to the “material contribution test” and the decision in Murphy, but did not turn her mind to the application of the test, despite Bluescope having raised it in its submissions.
Bluescope submits that the Senior Arbitrator’s determination should be revoked and an award be made in its favour.

Mr Sekulovski’s submissions

Ground 1

Mr Sekulovski refers to the Senior Arbitrator’s acceptance of Dr Tamhane’s opinion. He submits that Dr Tamhane made a number of relevant findings, namely:
(a)    Mr Sekulovski suffered hearing loss in the nature of industrial deafness;
(b)    he has problems with speech discrimination;
(c)    the use of digital hearing aids would improve the effect of his hearing loss;
(d)    the type of hearing aids recommended would be more suited to noisy environments where Mr Sekulovski has difficulty with speech discrimination, and
(e)    hearing aids would assist with safety when Mr Sekulovski was driving or was a pedestrian.
Mr Sekulovski repeats his submissions made to the Senior Arbitrator that, in his statement, he records the symptoms he was having when he was still employed by Bluescope.
Mr Sekulovski submits that there is no medical opinion that traverses the opinion of Dr Tamhane and there is no evidence to suggest that hearing aids are not reasonably necessary as a result of the injury.
Mr Sekulovski contends that the Senior Arbitrator correctly applied Murphy. He submits that there is a clear need for hearing aids. Simply because the entirety of the loss may not be attributable to the work injury, that does not preclude the hearing aids from being reasonably necessary as a result of the injury.
Mr Sekulovski submits that Bluescope has not made out the ground of appeal and it should be dismissed.

Ground 2

Mr Sekulovski submits that the MAC is only conclusive as to the extent of the hearing loss because that is the only matter certified. The Certificate does not address the issue of whether the hearing aids are reasonably necessary as a result of the injury.
Mr Sekulovski disputes that the Senior Arbitrator’s finding is based on an assessment of 7.1% binaural hearing loss. He submits that Bluescope’s argument ignores the opinion of Dr Tamhane referred to above, upon which the Senior Arbitrator relied in making her ultimate finding.
Mr Sekulovski contends that Bluescope “places the entirety of its argument at the feet of the assessment of binaural hearing loss”[26] and that the appeal ground should be dismissed.
[26] Mr Sekulovski’s submissions, p 3, [16].

Ground 3

Mr Sekulovski disputes that the Senior Arbitrator made a finding that Dr Tamhane attributed the entirety of Mr Sekulovski’s hearing loss to his employment. Mr Sekulovski submits that the Senior Arbitrator found that Dr Tamhane attributed all of the hearing loss suffered to “noise”, which is not equivalent to industrial noise.
Mr Sekulovski submits that Dr Tamhane made a 12.5% correction for presbycusis. Mr Sekulovski contends that the Senior Arbitrator determined the issue following consideration of the opinion of Dr Tamhane, which included a correction for presbycusis.
Mr Sekulovski submits that this ground of appeal be dismissed, or, if it has been made out, there remains no reason to disturb the Senior Arbitrator’s findings.

Ground 4

Mr Sekulovski repeats his submissions that the Senior Arbitrator’s findings are based on a consideration of Dr Tamhane’s opinion and there is a sufficient basis for those findings. He submits that this ground of appeal should be dismissed.

Ground 5

Mr Sekulovski submits that the Senior Arbitrator addressed Bluescope’s submissions, in that she:
(a)    disposed of the issue in relation to the MAC at [22] of her decision;
(b)    considered the cases in which entitlements to s 60 were awarded in circumstances where the binaural hearing loss was low, and
(c)    relied upon Dr Tamhane’s opinion, which provided a satisfactory basis to determine the matter in favour of Mr Sekulovski.
Mr Sekulovski contends that the Commission has exercised jurisdiction and this ground of appeal should be dismissed.
Mr Sekulovski submits that the entire appeal should be dismissed.

Bluescope’s submissions in reply

Ground 1

Bluescope submits that Mr Sekulovski has failed to appreciate its submissions. Bluescope reiterates its request for an oral hearing.
Bluescope refers to Mr Sekulovski’s submission that he disputes the degree of hearing loss arising from industrial deafness. Bluescope submits that the degree of hearing loss could never have been disputed because of the binding nature of the MAC.
Bluescope contends that Mr Sekulovski makes no attempt to demonstrate how Dr Tamhane’s report discharges the burden of proof. Instead, it submits, Mr Sekulovski asserts there is no medical contest because Bluescope has not relied on any medical evidence to show that the need for hearing aids is not work-related. Bluescope queries why it was necessary for it to submit evidence when the combined effect of the MAC and Dr Tamhane’s assessment results in a non-work-related component of the loss being 932% of the work-related hearing loss.
Bluescope further refers to Mr Sekulovski’s submission that the need for treatment is not precluded from having a causal connection with the injury simply because not all of the loss is attributable to the injury. Bluescope says that Mr Sekulovski has not demonstrated how he has discharged the onus of proof in those circumstances. Bluescope refers to Mr Sekulovski’s reliance on his own statement evidence that he experienced difficulties hearing conversations and the television during the time he was still employed with Bluescope. Bluescope submits that Mr Sekulovski does not explain why that evidence discharges his onus of proof when that evidence was not included in the history taken by Dr Tamhane. Bluescope notes that Dr Tamhane recorded a history of gradual onset of hearing loss over the “past many years”. Further, Bluescope submits, that evidence (presumably the evidence of Mr Sekulovski) did not feature in the Senior Arbitrator’s reasons and Mr Sekulovski has not raised a notice of contention.

Ground 2

Bluescope submits that none of the matters referred to by Dr Tamhane in his “supplemental findings” address the issue of whether the work-related component of the hearing loss (which must be 1.9%) gave rise to the need for hearing aids.
Bluescope contends that the Senior Arbitrator adopted Dr Tamhane’s report in its entirety, and that Mr Sekulovski’s attempt to separate the doctor’s opinion on the need for hearing aids from the assessment of the loss is “both artificial and distracting from the fundamental issue.”[27] It submits that the doctor’s recommendation for hearing aids must be founded on something and in this case, it was founded on his opinion as to the extent of the work-related hearing loss, which was 7.1%.
[27] Bluescope’s submissions in reply, p 2, [9].

Ground 3

Bluescope refers to the Senior Arbitrator’s reasons and her understanding that Dr Tamhane attributed all of the hearing loss to industrial noise. Bluescope submits that the Senior Arbitrator, by describing the loss suffered to be attributable to noise, erroneously found that all of Mr Sekulovski’s hearing loss was due to injury deemed to have occurred on 21 October 2000. Bluescope submits that presbycusis is age-related hearing loss and is not attributable to noise.

Ground 4

Bluescope submits that Mr Sekulovski makes no attempt to address its submission, but simply gives a summary of the evidence.

Ground 5

Bluescope contends that Mr Sekulovski makes no attempt to demonstrate the Senior Arbitrator’s reasoning process in her determination that the injury was the “primary cause” of the need for hearing aids. Bluescope submits that the Senior Arbitrator has failed to address the “obvious implications of the simple mathematics concerning the significance of the non-work related hearing loss as distinct from the (1.9%) work related hearing loss.”[28] Bluescope suggests that the Senior Arbitrator’s failure to do so may be explained on the basis that the Senior Arbitrator misunderstood that Dr Tamhane had attributed all of the hearing loss to noise.
[28] Bluescope’s submissions in reply, p 3, [13].

DISCUSSION

It is convenient to firstly deal with Grounds 4 and 5 of this appeal. In relation to those grounds, the thrust of Bluescope’s allegations of error is that the Senior Arbitrator failed to apply binding authority (by implication, the Presidential decision of Murphy) and failed to address Bluescope’s submissions. By sifting through Bluescope’s submissions to the Arbitrator and the submissions in support of the grounds of appeal, it is apparent that Bluescope’s primary case was that Mr Sekulovski’s noise induced deafness was such a minor component of Mr Sekulovski’s total hearing loss that it did not make a “material contribution” to the need for hearing aids.
Bluescope is critical of the Senior Arbitrator for considering the arbitral decisions in Delaqueze and Mathews. Bluescope says that its submission that there were no decisions where hearing aids were found necessary in cases of very low assessments was a mere “common-sense proposition”. Bluescope submits that there is no evidence, or no proper evidence that supports the proposition that the need for hearing aids results from the injury.
Having made a submission to the Senior Arbitrator that, to its knowledge, there were no cases with very low assessments of noise induced deafness where hearing aids were found to be compensable, it was open to the Senior Arbitrator to identify and discuss the decisions in Delaqueze and Mathews. It is inappropriate for Bluescope to now criticise the Senior Arbitrator for doing so. In any event, the Senior Arbitrator did not consider herself bound by those decisions, which of course, she was not. She identified that they were each determined on their own facts and she did not take them into consideration when ultimately reaching her decision in this matter.
Bluescope refers to the decision by Deputy President Roche in Murphy and asserts that the Senior Arbitrator did not turn her mind to the application of that authority, despite Bluescope having raised that authority in its submissions. There is no mention of that authority in Bluescope’s written submissions to the Senior Arbitrator. The Senior Arbitrator cannot have erred in respect of failing to deal with a submission that was never put to her.[29]
[29] Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34, [15].
The Senior Arbitrator cited Murphy in her reasons, including extracts that provided authority for the proposition that the work injury does not have to be the only, or even a substantial cause of the need for treatment. The extract included the Deputy President’s observation that it is necessary to establish that the injury materially contributed to the need for the treatment. The Senior Arbitrator referred to Murphy and the passages quoted from that decision to support her observation that the work caused injury need not be the primary cause of the need for treatment.[30]
[30]SekulovskiSekulovski v Bluescope Steel (AIS) Pty Ltd [2018] NSWWCC 155, [27].
The Senior Arbitrator further referred to the decision of Deputy President Roche in Diab,[31] in which the Deputy President confirmed the matters set out in Rose, as being factors to take into account. In Diab, the Deputy President commented that as always, each case is to be determined on its own facts, and the essential question is whether the treatment was reasonably necessary.
[31] Diab, [88]–[90].
The Senior Arbitrator reviewed the opinion of Dr Tamhane with respect to Mr Sekulovski’s difficulties with speech discrimination in the presence of background noise and the benefit Mr Sekulovski would derive form the provision of hearing aids.
The Senior Arbitrator concluded that Dr Tamhane attributed all of Mr Sekulovski’s hearing loss to “noise” and that his opinion provided a satisfactory basis for her to find that the need for treatment was reasonably necessary as a result of the noise induced hearing loss.

Both Murphy and Diab are relevant and binding authorities. While the Senior Arbitrator proceeded to determine the matter by assessing whether the hearing aids were reasonably necessary, it is not apparent from her reasons as to whether she turned her mind to the question of whether the noise induced hearing loss materially contributed to the need for the treatment in the manner set out in Murphy. Further, the Senior Arbitrator did not give consideration to Bluescope’s assertions that Mr Sekulovski suffered from a significant hearing loss which was attributable to other, non-work-related, causes.
In so far as Grounds 4 and 5 identify error by the Senior Arbitrator in failing to apply the “material contribution” test and in giving no consideration to Bluescope’s submission in relation to the significance of alleged other causes of the hearing loss, the grounds are upheld.
The Arbitrator’s reasons are revoked. It is not necessary, therefore to consider the remaining grounds of appeal, although I have taken into account the submissions made on appeal in my consideration below. Where an Arbitrator’s reasons are revoked, it is generally desirable that the Presidential member hearing the appeal re-determine all issues.[32] In the interests of a timely resolution, it is appropriate for me to re-determine the matter.
[32] Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1.

CONSIDERATION

Bluescope concedes that Mr Sekulovski requires hearing aids. The only dispute is whether the need for the hearing aids results from the noise induced hearing loss.
Bluescope submits that the question of whether Mr Sekulovski’s need for hearing aids results from the injury must proceed on the basis that he has a noise induced hearing loss of 1.9% binaural loss, which is the binding loss assessed in the MAC.
As observed by the Senior Arbitrator, while the MAC is binding to the extent of the loss in accordance with s 326(1) of the 1998 Act, it does not deal with the question of whether the need for hearing aids results from the injury. In any event, an assessment by an AMS concerning proposed treatment or service is not conclusively presumed to be correct. It is ‘evidence (but not conclusive evidence)’ in the proceedings (s 326(2) and Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee[33]).
[33] [2012] NSWWCCPD 41).
Bluescope submits that, on the basis of Dr Tamhane’s assessment of 7.1% binaural loss, it follows that Mr Sekulovski suffers from a significant component of hearing loss resulting from other causes (calculated at 932% of the work-related component). Bluescope says that as a result, Mr Sekulovski has not discharged his onus of proof. It also submits that it was not necessary for it to adduce its own evidence on causation to prove that the hearing loss resulted from other non-work related causes.
On the one hand, Bluescope concedes that the extent of the loss is not conclusive of an issue as to whether the need for hearing aids results from noise induced loss. On the other hand, Bluescope, applying a rather questionable mathematical calculation of the extent of the difference between the MAC and Dr Tamhane’s assessment, submits that from the “simple mathematics”, there are “obvious implications” concerning the significance of the non-work-related hearing loss. It further submits that in the face of such a significant non-work-related component to the loss, it was not necessary to adduce evidence on causation.
The difficulty with Bluescope’s submissions is that there is evidence from Dr Tamhane, and Ms Dunne, the audiologist, that Mr Sekulovski’s hearing loss was noise induced and the hearing aids are recommended to improve Mr Sekulovski’s hearing. Dr Tamhane opined as follows:
“Based on the history that I have obtained from Mr Sekulovslci, the fact that he has worked for 35 years in a very noisy industrial environment, the fact that he was employed on a fulltime basis with additional hours and shifts worked in overtime as required, it is my opinion that the tendencies, incidents and/or characteristics of Mr Sekulovski's employment with BlueScope Steel Limited, on the balance of probabilities gave rise to a real risk of Boiler Maker's Deafness or deafness of a similar origin. Noise induced hearing loss normally affects the 2000Hz, 3000Hz and 4000Hz frequencies but in patients who have had prolonged exposure to loud noise for 30 to 35 years and who have not been able to wear adequate ear protection, the hearing loss can gradually creep into the mid and low tones of 1500Hz, 1000Hz and 500Hz. Mr Se[k]ulovski has been exposed to continuous loud noise for 35 years and has not been able to wear ear protection all the time. Considering his history of exposure to continuous loud noise, looking at the distribution of his hearing loss in both the ears, after weighing all probabilities and giving him the benefit of the doubt, I would attribute his sensorineural hearing loss in the 500Hz, 1000Hz, 1500Hz, 2000Hz, 3000Hz and 4000Hz frequencies to noise induced hearing loss.”[34]
[34] ARD, p 3.
There is no medical evidence to support Bluescope’s theory that Mr Sekulovski suffered from a significant non-work-related hearing loss. Dr Tamhane’s assessment cannot be accepted as proof of that assertion because Dr Tamhane was of the opinion that the entirety of Mr Sekulovski’s assessable hearing loss was attributable to noise exposure.
Bluescope submits that Dr Tamhane’s opinion is “patently” dependent on his assessment of the hearing loss. On that basis, Bluescope submits, it is inconsistent with the MAC, which is binding, and Dr Tamhane’s opinion cannot be accepted.
There is nothing in Dr Tamhane’s report that indicates that his opinion as to the need for hearing aids is dependent upon the extent of the assessed percentage hearing loss. Dr Tamhane’s audiological examination revealed that Mr Sekulovski had difficulty with speech discrimination. On the basis of his examination, Dr Tamhane recommended hearing aids as a means of improving the difficulties with speech discrimination. Dr Tamhane identified the manner in which the type of hearing aids recommended would benefit Mr Sekulovski. Dr Tamhane’s view was that hearing aids were necessary to address Mr Sekulovski’s hearing loss. He had already expressed his view that Mr Sekulovski’s employment was noisy, and the hearing loss resulted from exposure to noise.
Dr Waldman examined Mr Sekulovski in August 1996 and expressed the view that at that time, Mr Sekulovski did not require the assistance of hearing aids. As Mr Sekulovski submits, he was exposed to noisy employment over a further four years, so that Dr Waldman’s opinion in 1996 was not of assistance in determining the need for hearing aids after cessation of employment. In any event, Bluesope did not seek to rely on Dr Waldman’s opinion.
There is no medical evidence to displace Dr Tamhane’s evidence as to the matters requiring determination. In fact, his view was supported by the evidence of the audiologist, Ms Anne Dunne, and Mr Sekulovski’s unchallenged statement evidence that he experienced difficulties with speech discrimination when he worked for Bluescope. There is no dispute that Mr Sekulovski’s hearing difficulties, while employed with Bluescope, were noise induced.
Bluescope maintains that because Dr Tamhane made an “impermissible” assessment, the whole of his opinion ought to be discarded. This submission contradicts Bluescope’s reliance on Dr Tamhane’s assessment to prove its case of significant other causes for the hearing loss.
In any event, the submission that Dr Tamhane’s assessment of a greater percentage loss than the assessment by the Medical Panel does not preclude acceptance of Dr Tamhane’s opinion on the need for treatment resulting from the injury. Dr Tamhane’s assessment of the degree of binaural hearing loss was not a feature in the reasons given by him as to why the treatment was reasonably necessary. Dr Tamhane’s assessment was clearly severable from his opinion with respect to the matters required to be determined. There is no requirement for a judge to accept the whole of the evidence of any one witness.[35]
[35] Chanaa v Zarour [2011] NSWCA 199, [86] per Campbell JA (Bathurst CJ and Tobias AJA agreeing).
Bluescope refers to the history recorded by Dr Tamhane that Mr Sekulovski was aware of a gradual deterioration in his hearing “over the past many years.” Bluescope submits that there was no medical opinion that the deterioration in hearing was attributable to noisy employment. Taken in the context of the entirety of Dr Tamhane’s report including Dr Tamhane’s conclusions in relation to the exposure to noisy employment, and his view that Mr Sekulovski’s hearing should not deteriorate further in the absence of further noise exposure,[36] it cannot be assumed that Dr Tamhane was referring to a deterioration occurring after the cessation of employment with Bluescope.
[36] Dr Tamhane’s report; ARD, p 4.
Bluescope disputes that Dr Tamhane attributed all of the hearing impairment to noise induced hearing loss.
In his assessment, Dr Tamhane calculated Mr Sekulovski’s loss for the frequencies 500 Hz, 1000 Hz, 1500 Hz, 2000 Hz, 3000 Hz and 4000 Hz. Dr Tamhane concluded in his report that he attributed all of the loss in those frequencies to noise exposure over a period of 35 years in employment with Bluescope. There were no other losses recorded by Dr Tamhane or any other evidence to dispute Dr Tamhane’s evidence that the extent of the loss recorded by him was caused by noise exposure. Reading Dr Tamhane’s opinion as a whole, it is reasonable to conclude that Dr Tamhane attributed all of the loss to noisy employment, and the need for hearing aids resulted from the noise induced loss. I accept that evidence.
Bluescope’s calculations of the percentages of the non-work-related loss have no foundation in the evidence and are wrong. They are based on a misapplication of the deduction for presbycusis, as discussed below, and an assumption that Dr Tamhane’s assessment included a non-work-related contribution, which it did not. In any event, the determination of whether necessary treatment results from the injury is not a mathematical calculation.
Bluescope asserts that there is a significant contribution to the total loss from other factors. Bluescope says that Dr Tamhane deducted 12.5% for presbycusis and then found 7.1% loss. The loss was significantly higher than the binding MAC, indicating the additional 5.2% related to other factors.
A deduction for presbycusis is made in accordance with Tables produced by the National Acoustics Laboratory and is applied across the population aged over 50 years. It is not a calculation of actual age-related hearing loss. In any event, it can be seen from the hearing test recorded by Dr Tamhane that the deduction (which was 12.5 in Mr Sekulovski’s case) is made before the results are converted into percentage terms for each ear and before the loss in each ear is combined to arrive at a binaural hearing loss percentage.[37] There was also a deduction for presbycusis applied (as it was required to do) by the Medical Panel in its MAC. The allowance for presbycusis is not evidence that Mr Sekulovski actually suffers from significant age-related hearing loss and the deduction was not 12.5%, as alleged. Bluescope’s creative mathematics as to the extent of the alleged non-work-related loss is clearly incorrect.
[37] Dr Tamhane’s report dated 6 July 2017; ARD, p 5.
Neither the Medical Panel, nor Dr Tamhane, attributed any part of Mr Sekulovski’s loss to other non-work-related losses (other than the deduction for presbycusis, which is explained above). To accept Bluescope’s submission that the assessment of 7.1% loss must result in a significant portion of the loss as being non-work-related presumes that Dr Tamhane’s assessment must be accepted, while ignoring Dr Tamhane’s opinion that all of the 7.1% loss was noise induced.
As can be seen from the earlier assessments for which lump sum compensation was paid, as well as in many other cases, the opinions of medical experts often vary. It is evident that in 1988, 1991 and 1993, there was medical opinion that Mr Sekulovski suffered from greater than 1.9% binaural loss, and by July 1993 the opinion was that the loss was 8.3%. Those assessments are evidence of the variation between the opinions of doctors.
Had Mr Sekulovski been assessed by the same Medical Panel and the Panel found a further loss, then Bluescope may have some foundation for its argument, but that is not the case. Bluescope’s submission that on the one hand the MAC is binding, but on the other Dr Tamhane’s assessment is a benchmark to calculate the non-work-related loss is somewhat circular and the submission that the difference is evidence of a significant non-work-related component cannot be accepted. It is contrary to the evidence.
In Murphy, Deputy President Roche observed (citations omitted):
“Ms Murphyonly has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates) that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman). That is, she has to establish that the injury materially contributed to the need for the surgery. (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”[38]
[38] Murphy, [58].
In Mr Sekulovski’s case, the uncontested evidence is that during his employment, he experienced difficulty with speech discrimination because of his noise related hearing loss. Both Dr Tamhane and Ms Dunne recommend the use of digital hearing aids to address that difficulty and there is no opinion to the contrary.
Consistent with the authority in Murphy, the work-related component of Mr Sekulovski’s hearing loss (which on the available evidence is the whole of the hearing loss) materially contributed to the need for the treatment.
For the above reasons, I am satisfied that the hearing aids recommended by Dr Tamhane in his report dated 6 July 2017 are reasonably necessary as a result of Mr Sekulovski’s noise induced hearing loss pursuant to s 60 of the 1987 Act.
Bluescope is to pay Mr Sekulovski’s expenses in respect of the supply and fitting of the digital hearing aids as recommended by Dr Tamhane.

DECISION

The Senior Arbitrator’s Certificate of Determination dated 6 June 2018 is confirmed.

Elizabeth Wood

Deputy President

9 November 2018