Cessnock City Council v Thatcher - [2023] NSWPICPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Cessnock City Council v Thatcher [2023] NSWPICPD 28
APPELLANT:	Cessnock City Council
RESPONDENT:	Phillip Mark Thatcher
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W5574/21
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:	23 May 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 January 2022 is revoked. 2. The matter is remitted for re-determination by a different member.
CATCHWORDS:	WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – whether provision of hearing aids is reasonably necessary – assertion by employer to the Member that the suffering of tinnitus was not work related – the Member proceeded on the basis that tinnitus was not disputed – whether Member proceeded on an incorrect basis
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms H Ulmer, solicitor
Moray & Agnew
Respondent:
Mr M Bechelli, solicitor
Whitelaw McDonald
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF Member’s DECISION:	31 January 2022

INTRODUCTION

On 15 May 2020, Phillip Thatcher (the respondent to the appeal) made a claim for industrial deafness relying on the deeming provisions of s 17 of the Workers Compensation Act 1987 (the 1987 Act) with the deemed date of injury being 30 June 2018.[1] Liability was accepted on the basis that the appellant was the last noisy employer.[2]
[1] Application to Resolve a Dispute (ARD), p 1.
[2] Appellant’s submissions 28 February 2022, [14]–[15].
However, the respondent also made a claim for the cost of hearing aids in the amount of $6,426.00. The appellant denied liability for the hearing aids asserting that they were not reasonably necessary treatment within the meaning of s 60 of the 1987 Act.
On 31 January 2022, the Member determined that binaural hearing aids were reasonably necessary treatment for the work related hearing loss and tinnitus that the respondent had sustained. As a result, the Member made an award for the costs associated with those hearing aids pursuant to s 60 of the 1987 Act.[3]
[3] Thatcher v Cessnock City Council [2022] NSWPIC 37 (the reasons).
The respondent’s employer, Cessnock City Council (the appellant), has appealed that determination. The grounds of the appeal are twofold:
(a) the Member erred in her reasons that liability for tinnitus had been conceded (Ground One), and
(b) the Member erred in her finding that the hearing aids were compensable (Ground Two).
As the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd,[4] by reason of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Member. There can be no appellate intervention without a finding that there has been error.
[4] [2022] NSWCA 138, [11].
The nature of an appeal is described by Roche DP in Raulston v Toll Pty Ltd.[5] In that matter, the general principles applicable to appeals under s 352 of the 1998 Act were helpfully summarised, including that, by reference to Whiteley Muir & Zwanenberg Ltd v Kerr,[6] whilst an arbitrator (or member) may have preferred one view of the primary facts to another as being more probable, that finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”. Further, Roche DP cited the decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[7] which is dealt with in more detail later in this decision.
[5] [2011] NSWWCCPD 25; 10 DDCR 156.
[6] (1966) 39 ALJR 505, 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227).
[7] [2001] FCA 1833 (Owston Nominees) (Drummond and Mansfield JJ agreeing).

ON THE PAPERS

Both parties have indicated that they are content for the appeal to be determined on the basis of the documents lodged with the Commission and their written submissions on appeal.
I have read all of the material in this matter including the written submissions of both parties, the transcript and the medical reports. I have read and considered the Member’s reasons.
Pursuant to s 52(3) of the Personal Injury Commission Act 2020, I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
On 24 March 2022, the appellant also conceded that the appeal does not relate to an interlocutory decision.

THE EVIDENCE

The respondent was employed by the appellant from 23 April 2018 to 27 June 2018 as a plant operator. Prior to that employment, the respondent had worked as a plant operator for P & N Thatcher Pty Limited for 40 years.[8]
[8] ARD, p 2: Notice of Injury.

Lay evidence

The respondent gave evidence in two statements, the first dated 6 November 2020[9] and a supplementary statement dated 27 May 2021.[10] He was not required for cross-examination.
[9] ARD, p 27.
[10] ARD, pp 28–30.
In those statements, the respondent described the noisy environment to which he was subjected at work. As stated, there is no dispute about noisy employment nor that the appellant was the last noisy employer.
In relation to the first report of Dr Fernandes, the respondent stated that he told Dr Fernandes that he was not able to have normal conversations[11] and rejected the assertion to the contrary contained in that report. The respondent stated that he informed Dr Fernandes that he avoided situations when normal hearing was necessary to engage in conversations. The respondent stated that his hearing ability was often inadequate to make out what was being said, particularly where there were competing sounds. The respondent stated that conversational exchanges often became frustrating and even humiliating particularly when he had to rely on someone, such as his wife, to translate or interpret for him. The respondent advised that he used visual cues and created circumstances to improve his ability to hear, such as closing the door or increasing the volume on the television.[12]
[11] ARD, p 28, [4]–[5].
[12] ARD, p 28, [6]–[8].
The respondent stated, in relation to his tinnitus, that he had become more aware of constant bilateral ringing in the back of his head since 2017. He said that the ringing was equal in the left and right ears and that it interfered with his daily activities because he had difficulty hearing and that it often interfered with his sleep. The respondent stated that the audiologist had recommended hearing aids which were equipped with tinnitus masking capacity.[13] I note that this latter statement was made prior to the trial period of the hearing aids in September 2021 and that following that trial period, the respondent was reported as having said that there was no improvement of his tinnitus during that trial.
[13] ARD, p 30, [18]–[19].

Bloom Hearing Specialists

The respondent relied on a report and quotation from Bloom Hearing Specialists. The report identified that a hearing assessment had been undertaken on 22 March 2019 which revealed mild to moderate sensorineural hearing loss bilaterally. The report recommended the fitting of Widex Evoke Z330 RIC hearing aids and set out a quotation for those hearing aids and supporting services in the amount of $6,426.00.[14]
[14] ARD, p 3.
Carly Dodds, audiometrist at Bloom Hearing Specialists, provided a further report dated 09/2021 (sic). In that report, Ms Dodds set out a history of the respondent reporting bilateral tinnitus which was constant and often interrupted his sleep and concentration. Ms Dodds recommended the Widex Evoke 330 hearing aids on the basis that they would provide the required level of hearing aid performance. Ms Dodds then described in detail the features of the said hearing aids. Importantly, Ms Dodd reported that the respondent undertook a trial of the hearing aids between 15 and 29 September 2021 and stated that the respondent advised that his ability to hear had improved markedly during that trial period. Ms Dodds reported that the respondent had said the hearing aids had enhanced his ability to engage in social interactions, watch television and that he felt less isolated and had an increased sense of awareness and safety. However, Ms Dodds noted that the respondent reported that he did not notice a great reduction in his tinnitus whilst wearing the devices.[15]
[15] ARD, pp 33–34.

Danielle Coonerty

The respondent also relied on a report of Danielle Coonerty, clinical audiometrist, dated 28 June 2021.[16] This report was directed to the opinion of Dr Fernandes that all of the respondent’s noise related hearing losses were essentially symmetrical and that hearing aids were not reasonably necessary.
[16] ARD, p 31.
Ms Coonerty referred to an academic study titled “Hearing Loss Asymmetry due to Chronic Occupational Noise Exposure” (Journal of Otology and Neurotology, September 2018 – Volume 39 – Issue 8) which found that the left ear is more susceptible to noise exposure compared to the right ear.
Ms Coonerty also referred to other research which showed improved understanding of speech for hearing aid wearers with even mild hearing losses: (“Hearing Aid Use and Mild Hearing Impairment”, Journal of the American Academy of Audiology, September 2017, volume 28, issue 8 pp 731 to 741).

Dr Peter Macarthur

The respondent relied upon an assessment and report of Dr Peter Macarthur, Ear Nose and Throat, Head and Neck Surgeon, dated 18 March 2020.[17] The history given by the respondent to Dr Macarthur included an approximate 20 year period of slowly increasing deafness and constant bilateral ringing tinnitus which the respondent described as his ‘biggest problem’. Dr Macarthur relied on an audiology report prepared by Taree Audiology and Hearing Aid Clinic on 5 March 2020.[18] Dr Macarthur opined that the audiogram showed a bilateral mild to moderate high tone sensorineural deafness. The report also opined causation in relation to exposure to loud noise over a total of about 40 years in the respondent’s work as a plant operator. Dr Macarthur assessed sensorineural hearing loss at 4.6%, subtracted 0.6% for presbycusis and added 3.0% for severe tinnitus. Accordingly, the adjusted binaural hearing loss was set by Dr Macarthur at 7%.
[17] ARD, pp 6–9.
[18] ARD, p 10.
Dr Macarthur opined that it was reasonably necessary for the respondent to have binaural digital hearing aids partly for his hearing loss but mainly for the tinnitus.
In a later report, responding to the opinion expressed by Dr Fernandes in his report dated 20 August 2020, Dr Macarthur denied any conflict of interest in relation to the recommendation for the hearing aids. Dr Macarthur conceded that Dr Fernandes’ opinion may be correct, that it was possible that the hearing aids might be irritating to the respondent, as the sounds would be amplified to more than tolerable levels. However, Dr Macarthur stated that the only way to solve the problem was for the respondent to have a trial of the hearing aids. Finally, Dr Macarthur rejected Dr Fernandes’ assertion that there was any coexisting pathology that could be contributing to the respondent’s tinnitus and stated that he did not find any significant asymmetry in the audiogram compared with the audiograms of the Approved Medical Specialist (AMS) and Dr Fernandes.[19]
[19] ARD, p 132.

Dr Brian Williams

The respondent was assessed by an Approved Medical Specialist (AMS), Dr Brian Williams, a specialist Otorhinolaryngologist on 12 and 13 January 2021 following a referral by the then Workers Compensation Commission. In his report dated 28 January 2021,[20] Dr Williams noted a 4 year history of gradual bilateral hearing loss and constant bilateral ringing in the back of the respondent’s head since 2017. Dr Williams noted that the respondent gave a history that he did not have difficulty hearing conversation in quiet environments but needed to increase the volume of the television to be able to hear it and did have difficulty hearing in noisy environments and in hearing people who were speaking from another room in the house.[21]
[20] Reply to Application to Resolve a Dispute (reply), pp 4–10.
[21] Reply, p 5.
Dr Williams assessed that the respondent suffered occupational hearing loss of 3.7% and assessed the respondent’s tinnitus at 3% because it interfered with his activities of daily living.[22]
[22] Reply, p 8.
Dr Williams opined that hearing aids are reasonably necessary for the injury “if retrocochlear pathology is excluded by his treating Doctors and a trial of hearing aids (with sound generator capability) is successful.”[23]
[23] Reply, p 9.

Dr Fernandes

Dr Sylvester Valentine Fernandes, Specialist Ear, Nose, Throat and Facial Cosmetic Surgeon, was requested by the solicitors for the appellant to examine and assess the respondent. In his report dated 20 August 2020,[24] Dr Fernandes noted the history of noisy employment and also noted the presence of tinnitus for six and a half years as “constant, maskable, high pitched, does disturb his sleep pattern, does interfere with activities of daily living and he has not sought medical treatment for same”.[25] Dr Fernandes noted that the respondent had told him that he had difficulty understanding conversation in the presence of background noise, and turned up the volume of the television to the discomfort of fellow viewers and had difficulty understanding on the telephone.[26]
[24] ARD, pp 17–26.
[25] ARD, p 19, under heading “Present Symptoms”.
[26] ARD, p 19, under heading “Current Functional Status”.
Based on audiometry, Dr Fernandes opined that the respondent had asymmetric hearing loss with the left side being worse than the right and noted that noise-induced hearing loss was essentially symmetric. Dr Fernandes assessed the binaural hearing loss at 3.5%, made an addition for tinnitus of 2% and a deduction for presbycusis at 0.8%. The resultant total assessment was 4.7%.[27]
[27] ARD, pp 20–21.
Dr Fernandes opined that hearing aids were not reasonably necessary as a result of the compensable injury as, in the audiogram that he had obtained, it appeared that the speech reception frequencies were not significantly affected. Dr Fernandes opined that speech reception thresholds in the respondent’s case were 90% at 60 dB on the left and 95% at 60 dB on the right.[28] Later in his report, he made a comment that the need for hearing aids constitutes a conflict of interest where the outcome of the assessment may be perceived as significant for the examiner and the associate or audiologists. As noted above, the suggestion of a conflict of interest was refuted by Dr Macarthur in his second report.
[28] ARD, p 21, under heading “Hearing Aids”.

DISPUTE AT FIRST INSTANCE

When the matter came before the Member, the scope of the dispute was quite limited. The sole dispute centred on the appellant’s denial of liability for hearing aids, asserting that they were not reasonably necessary as required under s 60 of the 1987 Act.
The appellant contended that the respondent’s tinnitus was not caused by exposure to a noisy work environment and that it should therefore be disregarded when considering the extent of work-related binaural hearing loss. The appellant submitted that if the hearing loss assessments were reduced by the amount that had been added in for tinnitus, the work-related hearing loss (after deduction for presbycusis) was very low, being between 2.7% (Dr Fernandes) and 4% (Dr Macarthur). On that basis, the appellant contended that the test in s 60 of the 1987 Act was not met because the hearing aids were not reasonably necessary for the hearing loss caused by the work injury (deafness due to a noisy work environment).
The respondent contended that his claim for hearing loss included that for the tinnitus, predominantly on the basis that it was included in the whole person impairment assessment made by Dr Williams in the Medical Assessment Certificate and that Dr Fernandes’ opinion that it was not occupationally caused should be given no weight. The respondent submitted that his claim for the cost of the hearing aids should be upheld.

THE MEMBER’S DETERMINATION AND REASONS

The Member identified that the issue for determination was whether digital binaural hearing aids were reasonably necessary treatment for work related hearing loss and tinnitus that the respondent had sustained.[29]
[29] Reasons, [5(a)].
The Member rejected the submission by the appellant that the audiometric reports relied upon by the respondent should not be admitted into evidence but said that she would give appropriate weight to those reports, noting that they were not of similar status to the reports from ENT specialists.[30] That conclusion is not the subject of any appeal.
[30] Reasons, [10]–[12].
The Member reviewed and summarised the salient features of all of the medical and audiometry reports that were before the Member.
The Member also took note of the matters set out by the respondent in his two statements, in particular the respondent’s rejection of Dr Fernandes’ assertion that the respondent’s hearing levels allowed him to have a normal conversation.
The Member’s decision-making in relation to whether hearing aids were reasonably necessary treatment was predicated on the assumption that liability had not been disputed for the hearing loss and tinnitus that the respondent had sustained. This is illustrated by the following passages in the Statement of Reasons:
“34.   Liability is not disputed for the hearing loss and tinnitus Mr Thatcher has sustained and accordingly the only issue for determination in this matter is whether the digital binaural hearing aids Mr Thatcher requires are reasonably necessary treatment as a result of the work-related hearing loss and tinnitus he has sustained.”
“39.   … In this matter Mr Thatcher is required to establish the work-related hearing loss and tinnitus he has sustained materially contributes to the need for bilateral hearing aids.”
“46. … I am comfortably satisfied Mr Thatcher has established that the work-related hearing loss and tinnitus he has sustained materially contributes to a need for bilateral hearing aids as recommended.”
“48.   It is not disputed Mr Thatcher has sustained work-related hearing loss and tinnitus.”
The Member identified that the respondent bore the onus of establishing that the work-related hearing loss and tinnitus that he suffered materially contributed to his need for bilateral hearing aids.[31]
[31] Reasons, [39].
In her consideration, the Member referred to s 60 of the 1987 Act and then went to the authorities. First, the Member referred to the test in Rose v Health Commission (NSW)[32] in which Judge Burke held:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purposes of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[32] (1986) 2 NSWCCR 32 (Rose), 42–43.

The Member then set out other principles laid down in Rose.
Next, the Member referred to Diab v NRMA Limited.[33] In that case Deputy President Roche held that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative.
[33] [2014] NSWWCCPD 72.
The Member then identified the principle to be drawn from Kooragang Cement Pty Ltd v Bates[34] that the issue of whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts of each case.
[34] (1994) 35 NSWLR 452.
The Member (in summary) took into account that:
(a)    Dr Macarthur had formed the view that it was reasonably necessary for the respondent to be fitted with bilateral hearing aids partly for his hearing loss but mainly for his tinnitus;[35]
(b)    Dr Fernandes had formed the view that it was not reasonably necessary for the respondent to be fitted with hearing aids because speech reception frequencies are not significantly affected and that the amplification provided by the hearing aids may cause irritability (which was a proposition with which Dr Macarthur did not disagree);[36]
(c)    the AMS (Dr Williams) agreed with Dr Macarthur that bilateral hearing aids were reasonably necessary treatment for the bilateral hearing loss and tinnitus but qualified his opinion by saying that retrocochlear pathology ought be excluded and that a trial of hearing aids should be successful. The Member noted that there was no evidence as to whether or not retrocochlear pathology had been excluded but there was evidence that the respondent had completed a trial of hearing aids;[37]
(d)    the AMS correctly pointed out that Dr Fernandes only considered the hearing loss sustained by the respondent in relation to his opinion about hearing aids and did not consider whether hearing aids were reasonably necessary treatment for his severe tinnitus;[38]
(e)    although the respondent reported success with the hearing aids (during the trial) he did not notice a great reduction in his tinnitus,[39] and
(f)    both audiometry reports had recommended the fitting of hearing aids.[40]
[35] Reasons, [41], [45].
[36] Reasons, [41].
[37] Reasons, [42].
[38] Reasons, [43].
[39] Reasons, [43].
[40] Reasons, [45].
The Member made a finding that she preferred the opinions of Dr Macarthur and the AMS to that of Dr Fernandes in circumstances where the respondent had reported a significant benefit during the trial period with the hearing aids. Accordingly, the Member concluded that the digital binaural hearing aids were reasonably necessary treatment for the work related hearing loss and tinnitus that the respondent had sustained.[41]
[41] Reasons, [47].
The Certificate of Determination issued on 31 January 2022 records a finding as follows:
“1. Digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus the [respondent] has sustained.
2. The [appellant] is to pay the costs associated with digital binaural hearing aids in accordance with s 60 of the Workers Compensation Act 1987.”

SUBMISSIONS

Appellant’s submissions

The appellant proceeds on two grounds. The first is that the Member erred in proceeding on the basis that liability for tinnitus had been conceded. The second is that the Member erred in finding that the hearing aids were compensable.

Ground One

The appellant noted that the Member made reference to the fact that the hearing loss and tinnitus were work related in four different paragraphs of the Statement of Reasons but that was contrary to the position put by the appellant at the hearing on 13 December 2021.
The appellant contends that its submissions during the hearing were that the respondent’s tinnitus was due to non-occupational causes and that the occupationally caused hearing loss was not sufficient to materially contribute to the need for hearing aids.[42] In particular, the appellant submits that, during oral submissions, counsel for the appellant put the argument that (I note that the quote below from the submissions differs slightly from the transcript as noted):
“… the tinnitus itself in my submission cannot be prescribed [sic[43]] either in whole or even perhaps in part to the sensorineural loss. Tinnitus is a very separate risk [sic[44]] and, in my submission, is not something that is compensable. Therefore, if it is not compensable, you would not order hearing aids if it is indeed due [sic[45]] in part to ameliorate tinnitus.”[46]
[42] Appellant’s submissions 28 February 2022, [33(a)].
[43] Transcript of proceedings of 13 December 2023 (T) says “ascribed”, see T9.26.
[44] Transcript does not have the word “risk”, see T9.28.
[45] Transcript says “even” not “due”, see T9.31.
[46] Appellant’s submissions 28 February 2022, [35].
The appellant relies on an exchange between the Member and counsel for the appellant wherein counsel for the appellant stated: “in this circumstance, where the [respondent] has very small hearing loss and what appears to be separate tinnitus I’m making the submission that the tinnitus shouldn’t be included in your finding of the injury.”[47]
[47] T10.25–29.
Further, the appellant submits that during the hearing, counsel for the appellant did not accept the Medical Assessment Certificate opinion about hearing aids because Dr Williams did not explain why the tinnitus formed part of the assessment nor why it formed part of the hearing loss.
Accordingly, the appellant contends that because the Member proceeded on a wrong basis, being that the appellant had conceded liability for the tinnitus, therefore the Member had engaged in an error of law.

Ground Two

The second ground follows from the first. The appellant submits that once tinnitus had been (erroneously) included as part of the compensable injury, the decision-making which followed was similarly erroneous.

Respondent’s submissions

In the respondent’s submissions, it is acknowledged that the appellant did not accept that the tinnitus formed part of the work-related injury.[48] However, the respondent points to some of the oral submissions made during the hearing and contends that they were equivocal when answering a question from the Member about the AMS assessment of impairment.[49] In that exchange, counsel for the appellant said that the AMS did not explain why the tinnitus had come about and why it was included in the assessment. The respondent submits that if the appellant disagreed with the whole person impairment given by the AMS, it should have been the subject of an appeal to an Appeal Panel.
[48] Respondent’s submissions 21 March 2022, [10].
[49] Respondent’s submissions 21 March 2022, [5].
The respondent submits that the Member’s decision that hearing aids were reasonably necessary was based on two considerations. Firstly, that the AMS considered that hearing aids were reasonably necessary (but conceding this was not a binding determination) and secondly, because the AMS whole person impairment assessment which included the tinnitus was binding and it was of such magnitude to support the opinion that hearing aids were reasonably necessary.
The respondent contends that once a whole person impairment assessment had been made, there was no jurisdictional basis for the Member to go behind that assessment. Further, the respondent submits that an assessment of 3% whole person impairment equated to 6% binaural hearing loss which, he submits, is traditionally regarded as the threshold establishing the reasonable necessity for hearing aids.[50] The respondent also submits that the Member relied on other evidence in addition to that of the AMS, being the statements of the respondent, the reports of the audiometrists, the opinion of Dr Macarthur and that of Dr Fernandes.[51]
[50] Respondent’s submissions 21 March 2022, [14].
[51] Respondent’s submissions 21 March 2022, [16].
In relation to Ground Two, the respondent refers to the AMS assessment and submits that the appellant failed to demonstrate the tinnitus should have been excluded as a factor in determining whether hearing aids were reasonably necessary.

CONSIDERATION

In order for the appeal to succeed, I must be persuaded that the Member was in error, as is required by s 352(5) of the 1998 Act. Further, I note the principles as to the approach that needs to be taken to appeals of this kind as summarised by Allsop J (as his Honour then was) in Owston Nominees:[52]
“24. What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes, supra at 538.
25. This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kinds of considerations referred to in [24] above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient: see Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 229-30. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning: see generally Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151-56) the preference of the appeal court for one view would carry with it the conclusion of error. However, other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions, see Fenton Nominees Pty Ltd v Valuer-General (1981) 47 LGRA 71, 73-76.
…
28. … First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission(1988) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 and SRA v Earthline, supra. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
[52] Owston Nominees, [24]–[25], [28].

Ground One – The Member erred in finding that liability for tinnitus had been conceded

It is clear that the Member proceeded on the basis that liability for tinnitus had been accepted by the appellant.[53] This is incorrect.
[53] Reasons, [34], [39], [46], [48].
During the course of the hearing, counsel for the appellant put the appellant’s case on the basis that the binaural hearing loss was of itself so small as to not warrant treatment in the form of hearing aids.[54] Counsel for the appellant then built on that argument and submitted that the respondent’s tinnitus was due to non-occupational causes and should be disregarded when considering the extent of the occupationally caused hearing loss.[55] Counsel then said:
“… where the [respondent] has very small hearing loss and what appears to be separate tinnitus I’m making the submission that the tinnitus shouldn’t be included in your finding of injury.”[56]
[54] T8.4–31.
[55] T9.25–32.
[56] T10.25–28.
There was then an exchange with the Member in which counsel for the appellant was asked whether the Medical Assessment Certificate was binding in relation to the whole person impairment, to which counsel for the appellant agreed. However, his argument was that the opinion expressed by the AMS that hearing aids were necessary was not binding. Further, counsel for the appellant argued that the AMS had not explained why the tinnitus had formed part of the binaural hearing loss assessment or why severe tinnitus would be ameliorated by the use of hearing aids.[57]
[57] T12.
During the hearing, counsel for the appellant submitted:
“… the tinnitus itself, in my submission, cannot be ascribed either in whole or even perhaps in part to the sensorineural loss. Tinnitus is a very separate … and, in my submission, is not something that is compensable and, therefore, if it’s not compensable you would not order hearing aids if it is, indeed, even in part to ameliorate tinnitus.”[58]
[58] T9.25–32; Appellant’s submissions 28 February 2022, [35].
Counsel for the respondent engaged in this debate during the hearing. Counsel for the respondent put the submission that the need for the hearing aids was due to both the mild hearing loss and the tinnitus. He submitted that the proposition being put by the appellant that the tinnitus was not related to occupational noise would be out of step with the practice within the Commission, where it is routinely accepted that tinnitus can be caused by exposure to years of noise from plant and machinery.[59]
[59] T21.9–19.
Thereafter, counsel for the respondent engaged in lengthy submissions as to the opinions expressed Dr Fernandes, seeking to discredit the basis on which the doctor had formed his view that hearing aids were not reasonably necessary.[60]
[60] T22–27.
In his written submissions in this appeal, the respondent has conceded that appellant did not accept that the tinnitus was part of the compensable injury.[61]
[61] Respondent’s submissions 21 March 2022, [10].
Accordingly, the issue of whether the hearing loss attributable to the tinnitus could be relied on to assess the necessity for hearing aids under s 60 of the 1987 Act was a matter squarely in issue between the parties.
In my view, it is clear that the Member was in error in asserting that the appellant had not disputed liability for the tinnitus. Further, the Member was required to address the argument and then provide reasons for whatever decision she reached in relation to that issue and fell into error by not doing so.
As was held in Li v Attorney General for New South Wales:[62]
“Of course, a failure expressly to address an argument or to consider some material does not, without more, constitute legal error. But a failure to address a ‘substantial, clearly articulated argument’ may amount to a failure to afford procedural fairness or, as the applicant formulated the error in this Court, in some circumstances to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. What is critical is that the argument was ‘clearly articulated’ in the sense that the decision-maker can be said to have been put on notice of the argument, and ‘substantial’ in the sense that it was capable of altering or clearly material to the decision: see DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [53]–[54]; Insurance Australia Ltd (t/as NRMA Insurance) v Milton [2016] NSWCA 156 at [8]–[9].”
[62] [2020] NSWCA 302, [48].
There is authority for the proposition that tinnitus is compensable for an assessment of impairment pursuant to s 69A of the 1987 Act (since repealed) as required pursuant to the then WorkCover Guidelines (now 9.11 of SIRA Guidelines to the Evaluation of Permanent Impairment).[63] The Guidelines allow up to an additional 5% for work-related binaural hearing impairment for severe tinnitus as a result of a work injury. However, in my view, the general principles of causation would need to be applied to determine, on the evidence, whether the tinnitus is part of the respondent’s occupational hearing loss.
[63] Qantas Airways Ltd v Strong [2011] NSWWCCPD 40.
This was the argument that the appellant invited through its submissions at the hearing and this is the issue which the Member did not address.
Section 294 of the 1998 Act requires a member to give reasons. This obligation is further addressed in r 78 of the Personal Injury Commission Rules 2021. It is also a matter of settled principle.[64]
[64] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, [441]–[444]. See also Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230, [63]–[66].
The erroneous assumption that liability in relation to the tinnitus had not been disputed means that the Member did not engage in the debate and therefore did not give reasons as to the conclusion that she proceeded upon, being that the tinnitus was part of the overall compensable hearing loss.
In terms of the principles in Owston Nominees, I am persuaded that by proceeding on the erroneous assumption that liability in relation to the tinnitus had not been disputed was an error of fact on the part of the Member. I am also persuaded that by failing to address and provide reasons on the argument raised by the appellant that tinnitus should not be regarded as part of the overall hearing loss for the purposes of the claim for hearing aids was an error of law.
Ground One is upheld.

Ground Two – The Member erred in finding that hearing aids were compensable

In WorkersCompensation Nominal Insurer v Al Othmani,[65] an appeal from the Workers Compensation Commission, Bathurst CJ (McColl JA agreeing) said:
“The critical question, however, is whether the errors infected the Presidential member’s ultimate conclusion; that is whether they were operative errors in the sense discussed by Basten JA in Akora Holdings Pty Limited v Ljubicic [2008] NSWCA 339.”[66]
[65] [2012] NSWCA 45; 10 DDCR 290 (Al Othmani).
[66] Al Othmani, [92].
In Walshe v Prest[67] Basten JA (Giles JA and Campbell AJA agreeing) said:
“The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless ‘some substantial wrong or miscarriage has been thereby occasioned’ is now to be found in Part 51, r 23 of the Supreme Court Rules. As noted in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in New South Wales.”[68]
[67] [2005] NSWCA 333 (Walshe).
[68] Walshe, [27].

In my opinion, the Member proceeded on an erroneous basis in asserting that liability for hearing loss attributable to the tinnitus was not disputed. That was a foundational piece of the decision-making by the Member, who applied the test under s 60 of the 1987 Act on the basis of the total binaural hearing loss and tinnitus,[69] and then concluded that the hearing aids were reasonably necessary treatment for work-related hearing loss and tinnitus.[70]
[69] Reasons, [41], [42], [46].
[70] Reasons, [49].
True it is that the Member noted the evidence of the respondent about the lack of efficacy of the hearing aids in reducing his tinnitus,[71] but this did not address the gravamen of the appellant’s argument that the tinnitus should not be taken into account at all in determining causation between the compensable injury and the reasonable necessity for the hearing aids as treatment.
[71] Reasons, [43].
As stated above at [73], the failure to meet and determine that argument necessarily means that the conclusion reached by the Member is infected by error and I am persuaded that the error is substantial.
This ground of appeal is upheld.

CONCLUSION

I find that the decision was affected by relevant error within the meaning of s 352(5) of the 1998 Act.
I uphold Grounds One and Two of the appeal.

DECISION

The Certificate of Determination dated 31 January 2022 is revoked.
The matter is remitted to another non-Presidential member for re-determination.

Kylie Nomchong SC
Acting Deputy President

23 May 2023