Bunbulama and Comcare
[2011] AATA 900
•17 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 900
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1438
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | SARVA BUNBULAMA | ||
Applicant
| And | COMCARE |
Respondent
DECISION
TRIBUNAL:Dr K S Levy RFD, Senior Member and
Associate Professor J B Morley RFD, Member
DATE: 17 November 2011
PLACE: Brisbane
DECISION:For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
................[Sgd].................................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for sensorineural hearing loss and tinnitus – Claim accepted with error in calculation in compensation – Reduced amount of compensation – Original assessment for hearing loss incorrect – Whole person impairment less than 5 percent for hearing loss – 0 percent impairment for tinnitus – Whole person impairment for both conditions less than 5 percent – Entitlement to non-economic loss amended based on change to impairment percentage – Decision under review affirmed
Safety Rehabilitation and Compensation Act 1988 (Cth) s 14, 24, 27, 62
REASONS FOR DECISION
| 16 December 2011 | Dr K S Levy, RFD, Senior Member and |
| INTRODUCTION |
This decision records oral reasons provided to the applicant at the conclusion of the hearing of this matter.
The applicant, Ms Bunbulama, had been doing interpreting work over the telephone for government agencies and now suffers from noise induced hearing damage together with tinnitus. She sought compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Her claim was accepted on certain conditions contained in the letter dated 26 October 2010.
On 4 February 2011, a determination of Ms Bunbulama’s sensorineural hearing loss (bi-lateral) and tinnitus (bi-lateral) was made under s 24 and s 27 of the Act and she was advised of her monetary entitlements. It was then discovered there was an error in the previous calculation of her entitlements. A determination was then made by Comcare of its own motion, that the percentage of hearing loss and tinnitus should be varied and, as a result, the amount of entitlement to compensation was reduced.
Ms Bunbulama now seeks review of that decision.
EVIDENCE
Ms Bunbulama provided written evidence and appeared in person at the hearing. She explained that her hearing was a problem for her most of the time and that she has difficulty recognising the direction from which sound is coming. She says that it also affects her balance.
Ms Bunbulama told the Tribunal that she had lost her job and her only skill was to use her knowledge of four languages to assist in the interpretation of non-English-speaking people. She is now on a disability support pension from Centrelink.
Ms Bunbulama provided three statements of support as to her hearing loss and how it affects her. Two of the authors of those statements attended the Tribunal hearing and gave evidence in support of the applicant. One of those referees is Ms Bunbulama’s adult daughter.
Medical Evidence
There were a number of reports by medical specialists and audiologists filed either with the Tribunal or tendered at the hearing. The main evidence is contained in three reports provided by Dr Glennie, an ear, nose and throat specialist.
Dr Glennie provided two reports, dated 9 February 2010 and 16 September 2010 respectively. Critical to the assessment is the latter report. There, Dr Glennie assessed Ms Bunbulama as having a 9.4% binaural loss of hearing and a 2.5% disability under the “Comcare approved guide” (“the Guide”) for an accepted condition of tinnitus. He formed the view that Ms Bunbulama had a total permanent impairment of 11.9%.
As a consequence, Comcare determined on 4 February 2011 that Ms Bunbulama had an entitlement under s 24 of the Act and also for non-economic loss under s 27 of that Act.
The reconsideration of the respondent’s own motion under s 62(1) of the Act, varied the determination of 4 February 2011. This was undertaken on the basis that chapter 7.1 of the Guide requires the conversion of the percentage of loss of hearing into a whole person impairment rating. The calculation for the conversion requires the percentage loss of hearing to be divided by two. In other words, the actual whole person impairment is half the binaural percentage of hearing loss where there is hearing loss in both ears. This was not calculated correctly in the determination of 4 February 2011 in that the denominator of two was not applied in the formula to determine the whole person impairment rating.
CONSIDERATION
We have considered all of the evidence submitted to the Tribunal. We accept Ms Bunbulama as a witness of truth. However in assessing the evidence, we were satisfied that greater weight had to be given to the evidence of Dr Glennie as an independent medical expert as opposed to the opinion evidence of Ms Bruckner and Ms Kopke (who provided statements of support).
The correct assessment for hearing loss should therefore be 4.7% and not 9.4% as originally calculated. As this is less than 5% as specified in s 24(7A), an amount of compensation for hearing loss is not payable as it is below the 5% threshold.
In relation to tinnitus, Dr Glennie originally assessed the applicant at 2.5% whole person impairment. However, the application of the guide does not permit interpolation. A ‘point’ assessment must be made, which means that the assessor must adopt either 0% or 5%. A subsequent report by Dr Glennie clarified that based on the medical evidence he would have to select 0% in this case.
As a result of those calculations, a total whole person impairment rating is 4.7% (hearing loss 4.7%; tinnitus 0%). This reduced the lump sum compensation for those conditions to $7,484.09.
The applicant is also entitled to non-economic loss. The amount of non-economic loss has also been reduced because of the formula in s 27(2). One of the components is based on the degree of permanent impairment of the employee and as a result of the miscalculation initially, the amount originally advised also has had to be reduced.
We are satisfied that the amount of compensation under the Guide which is payable is therefore:
for hearing loss and tinnitus (whole person impairment of 4.7%): lump sum payable $7,484.09 (s 24).
non-economic loss: the rating of non-economic loss does not change but the entitlement changes to $13,943.12 (s 27). While the rating is unchanged the calculation results in a reduced monetary amount because of the formula in s 27(2).
We are satisfied that those are the correct amounts. They are the amounts contained in the reconsideration determination dated 4 March 2011.
In the circumstances the decision under review is affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member and Associate Professor J B Morley RFD, Member
Signed: .............[Sgd]........................................................
Mark O’Brien, Research Associate
Date/s of Hearing 17 November 2011
Date of Written Reasons 16 December 2011
The applicant was self-representedSolicitor for the Respondent Suzy Dole, Sparke Helmore
0
0
1