Chan and Comcare - [2000] AATA 561

DECISION AND REASONS FOR DECISION [2000] AATA 561

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/69

GENERAL ADMINISTRATIVE DIVISION          )
           Re      DAVID CHAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date11 July 2000
PlaceCanberra

Decision      The tribunal affirms the decision under review.
  ..................(Sgd.).......................
  Pamela Burton   Senior Member
CATCHWORDS
WORKERS' COMPENSATION – claim for compensation for sensorineural hearing loss – tinnitus – pre-existing hearing loss – previous incidents - discomfort and irritation from noisy office environment – constant hearing loss and tinnitus thereafter – whether temporary symptoms from noisy work environment or permanent aggravation of pre-existing condition – no loss of incapacity for work.
Legislation
Safety Rehabilitation and Compensation Act 1988 s4

REASONS FOR DECISION

11 July 2000 Pamela Burton, Senior Member

This is an application for review of a decision made by a delegate of the respondent dated 2 February 1999 that affirmed a determination dated 16 November 1998 which denied liability for compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act") in respect of "aggravation of sensorineural hearing loss (bilateral)".
Mr Stuart Pilkinton appeared on behalf of the applicant and Mr Nick Polin appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents") and various documents, statements of witnesses, and medical reports tendered by the parties. The applicant gave evidence, and Dr Hugh Williams, ear, nose and throat surgeon, gave telephone evidence on his behalf. Dr Raymond Carroll, ear nose and throat medicolegal consultant, gave evidence in person on behalf of the respondent.
The applicant is 51 years old. He has been employed by the Department of Veterans' Affairs since 14 July 1998. He was previously employed by the Department of Employment, Education, Training and Youth Affairs ("DEETYA") at the level of senior technical officer Grade C, as a project manager, which required him to work in a computer room. He commenced employment with the Australian Commonwealth Public Service ("APS") some 22 years ago, having two breaks in that employment since that time.
The applicant's relevant medical history can be briefly summarised. In 1959, as a 10-year-old child, he suffered a perforated eardrum in his right ear. He had a mastoidectomy. In 1979 he had further mastoid surgery. In March 1983 the applicant had repair surgery to the perforated right eardrum. Prior to the bush dance episode in 1996, referred to below, the applicant was unaware of any hearing difficulties or loss of hearing.
In October 1996 the applicant attended a bush dance and as a consequence of the high noise level he suffered an uncomfortable roaring and ringing sensation in his right ear. He suffered a drop in hearing levels which he said lasted for 3 to 4 days thereafter. He consulted his general medical practitioner, Dr Somasundaram, who treated him for viral infection. At that time he was working for DEETYA in Woden.
In February 1997 DEETYA relocated to Mort Street in Canberra City. In about May 1997 the applicant again suffered a roaring and ringing in his ears and a drop in his hearing levels. He consulted Dr Somasundaram (T14) about this on 5 June 1997. Dr Somasundaram noted that the applicant complained of "hearing loss noise at work", and referred him to Dr Williams, an ear, nose and throat specialist, whom the applicant saw on 5 August 1997. On 28 May 1997, the applicant had hearing tests which revealed bilateral mild to moderate sensorineural hearing loss (Exhibit 4).
On 5 August 1997 the applicant told Dr Williams that he attended a bush dance in October 1996 where he was exposed to very loud music and consequently had suffered a roaring noise in his ears which has troubled him since that time. He complained of a reduced level of hearing in his left ear which he attributed to the roaring noise. On further questioning the applicant provided Dr Williams with a history of rifle shooting as a teenager and a history of riding motor cycles. He gave Dr Williams a history of the ear problems and operations he had had in the past. The applicant did not mention any difficulty with the noise level at work when he initially presented to Dr Williams, though he had told Dr Somasundaram of the problem at work.
Dr Williams concluded that the applicant had a pre-existing condition of otitis media which had considerably improved. On the history given, Dr Williams understood that the applicant had been untroubled by ear infections since the 1983 surgical repair procedure. Audiometric tests arranged by Dr Williams revealed that the applicant had a bilateral sloping high frequency deafness, which Dr Williams concluded was consistent with past noise exposure. His prognosis was that the applicant's condition had stabilised and that the applicant should cease or protect himself from further noise exposure. At the hearing the applicant explained that he hadn't mentioned his noisy work environment to Dr Williams, as he hadn't appreciated its significance until Dr Williams informed him that he had a noise induced hearing loss.
On 6 August 1997 the applicant voiced his concerns in writing by lodging a complaint to his managers at work about the noise of the computers and the air conditioner (T4, p.12). He said that he was experiencing an intermittent "roaring" sound combined with a "ringing" and a distinct loss of normal hearing ability. He said that when this occurred some noises become "loud" and most unpleasant. At the hearing Dr Williams explained this phenomena as being a consequence of "recruitment" – a psychological phenomena of perceiving noise at a higher level than it actually is.
On 16 February 1998 the applicant lodged a claim for compensation (T9), for the condition which he described as "ringing in the ears and decrease in hearing ability". He said that he was now suffering from "constant ringing in the ears". He claimed that the level of noise in the workplace at DEETYA's offices in Mort Street between February and September 1997 caused him a permanent aggravation to his hearing condition and to suffer from permanent tinnitus. On 6 March 1999 he wrote to this tribunal and requested a reconsideration of the decision under review setting out the history as he saw it and his complaints (T2).
The applicant moved to a quieter work environment after September 1997. He lost no time from work, suffering from no incapacity to work. There is no evidence before me as to what, if any, medical expenses the applicant incurred in the period May to September 1997 as a result of consulting medical practitioners or for any tests conducted or treatment given to him in this period, or what expenses he has incurred since. The applicant claims that as a result of his permanent tinnitus and hearing loss he requires a hearing aid and that it is likely that it will need to be replaced every 4 to 7 years.
The evidence about the noise level at work and its effect
The applicant is suffering from tinnitus and partial bilateral high frequency deafness. These conditions fall within the definition of disease under section 4 of the Act. The issues for the tribunal are whether the noisy environment in which the applicant worked between February and September 1997 caused or materially contributed to the aggravation of his disease condition, and if so, whether or not the aggravation is permanent. This requires some conclusions to be drawn as the extent of the noise levels in that environment.
The applicant gave evidence at the hearing of the effect the noisy environment had on him. He worked in an open plan office in Mort Street. Each workstation had a desk and a personal computer. He described where he sat in relation to the plant room, and described the computers and air conditioning noise. The applicant thought that there might have been about 13 computers and there were printers, and a fax machine in the area. The computers were Osborne brand, which he said were noisy. Some of the computers had a whining and a high pitched humming noise, but not all of the time. There was a plant room nearby. The applicant described the noise which emanated from the plant room and from the air conditioning ducting from time to time. He said there was a high pitched whining noise coming from the plant room. The noise from the air conditioning ducts was intermittent.
The applicant said that he became aware of his lower levels of hearing when he was sitting in conferences and was not able to hear everything that was being said. He said that occurred as a result of a roaring sound in his ears that he suffered from time to time. It sounded hollow, like surf on a beach, and he had never experienced it before so far as he was aware, other than on the occasion of the bush dance. He said that the noise or roaring sound lasted 30 minutes or so at the same intensity and then disappeared. He said that it occurred intermittently since his first experience of it, and it could happen more than once during the day. It often combined with a ringing or high trill type of noise or whistling noise, similar to the noise from which he suffers now. He said that it occurred in both ears, sometimes one and not the other. The ringing in the ears occurred after the roaring sensation ceased and lasted much longer than the roaring sensation. This occurred most days from about May until September 1997 and that once it started it was also triggered by noise outside the workplace, such as noisy traffic. The applicant said that now the ringing in his ears and loss of hearing is constant.
The applicant relied on the statements of other workers in the area who verified the applicant's evidence about the noisy environment in which they had to work. Mr Vincent, the applicant's supervisor, in a statement dated 29 April 1999 (Exhibit D), stated that he had developed a ringing in his ears that sometimes turned into a roaring noise. After discussing his problem in the workplace he found that four staff had similar complaints. In his statement dated 1 June 1998 (T10), Mr Vincent said that the applicant appeared distressed about the impact the "ringing" in his ears, and what he described as a significant associated hearing loss, was having on his lifestyle. Mr Vincent observed that the applicant's hearing had deteriorated, especially when there was background noise. Mr Horton, in a statement dated 20 October 1999 (Exhibit D), confirmed that three other staff officers had complained about the excess machine noise in 1997 in the applicant's workplace. Mr Horton was one of the sufferers.
There is no medical evidence before me of the medical conditions of these staff officers either before they worked in the Mort Street office, or after. However, I accept on the evidence before me that the noise level between February and September 1997 in the Mort Street office was such as to cause annoyance and discomfort and at least some temporary hearing difficulties and ear problems to some of the staff, including the applicant. It caused sufficient concern for some changes to be made and for acoustic tests to be carried out in the area.
In a DEETYA Minute dated 1 September 1997 (T2, p.7) some observations and recommendations were made arising out of an occupational health and safety inspection which was carried out in the area on 29 August 1997. The Minute stated in part that "[i]t was agreed that there was a significant amount of 'motor noise' coming from the air conditioning unit," and that three incident reports from staff in that area contained complaints of hearing difficulties. Some changes to Mr Vincent's office and the strategic placing of additional pot plants were recommended. It was indicated in the Minute that air conditioning maintenance contractors would be consulted about the "motor noise".
Eric Taylor from Eric Taylor Acoustics conducted a noise survey of the area on 10 September 1997, upon which he reported on 12 September 1997 (T8). He concluded that in most of the locations measured the noise levels exceeded the recommended noise levels by amounts varying from 1 to 2.5 decibels which, he reported "is negligible and is within the accepted tolerance of noise measurement." Mr Taylor compared the results with the requirements of the National Standard and the National Code of Practice for Occupational Noise and concluded that his results meant "that there should be no possibility of hearing damage to persons occupying the workplace".
It was submitted on behalf of the applicant that the noise tests were carried out some time after the applicant complained of the noise and after some effort had been made to reduce the impact of the noise on staff. For example, it was suggested that the Osborne computers had been replaced and that plant boxes had been placed around to dissipate some of the noise, and that it was possible that the air conditioner had been serviced by that time. The applicant said that he was not present when the tests were carried out and was not consulted about them. Mr Vincent, in his statement of 29 April 1999 (Exhibit D), also suggested that noise tests were conducted after some modifications had been made to reduce the impact of the noisy machinery.
Eric Taylor, in a report dated 23 February 2000 (Exhibit 3), took into account the possibility of modifications having been made to the air conditioning system prior to his acoustic survey on 10 September 1997. He thought that irrespective of any changes having been made it was virtually impossible for the noise levels to have exceeded even 50 decibels. He offered his opinion that noise levels had to be greater than 70 decibels for 8 hours a day over the whole of a person's working life for even the slight possibility of hearing damage to occur.
There is insufficient evidence before me to conclude that the air conditioning unit was serviced, or that as a consequence it became less noisy by the time the noise level tests were conducted. The applicant was still working in the area at the time the noise level tests were conducted. Yet he gave no direct evidence about whether or not the noise level had been reduced or by how much, prior to the acoustic tests being conducted. If the noise level had been reduced by reason of the placing of additional pot plants, or by a change in the brand of computers used, there is no evidence to suggest by how much. Taking the whole of the evidence into account it is not open on the evidence for me to find that the noise levels were at any time nearing or in excess of 50 decibels. I accept on the evidence that the noise level in the relevant period was higher than the generally acceptable standards for an office environment, and that it caused or triggered irritation and temporary ear and possibly hearing problems for some staff members including the applicant.
Medical evidence
Dr Williams, ear, nose and throat surgeon, first saw the applicant on 5 August 1997 on referral from his general practitioner. The applicant presented with a history of having suffered a roaring tinnitus in both ears when he went to a bush dance. Audiometry on 5 August 1997 showed "fair hearing with an element of bilateral high frequency loss caused through past noise exposure" (T22). Dr Williams thought that at the time he saw him the applicant had some underlying damage to his ears from past noise exposure which he attributed to past rifle shooting and exposure to noise from motor cycles, recently aggravated by the very loud music at the bush dance. This caused some exacerbation of the symptoms with tinnitus (T22). On 19 August 1997 Dr Williams reported to Dr Somasundaram (T6), that the condition had largely settled "but he still has a constant ringing tinnitus in his left ear". It was not suggested that the applicant's employment conditions contributed in any way to the symptoms or condition.
Dr Williams saw him on a number of occasions as set out in his report of 8 March 1999 (Exhibit A). On hearing from the respondent that the applicant had submitted a claim for compensation, Dr Williams suggested that he should see the applicant again as the applicant had not mentioned to him his employment as a possible source of exposure to noise. Dr Williams saw the applicant again on 23 February 1999. He then obtained a history from the applicant that he worked in a computer room with a particularly loud air conditioning plant in the office. He said that the roaring tinnitus that the applicant initially saw him about "has now settled" but that he still has a persisting low grade tinnitus.

In his report of 8 March 1999 (Exhibit A), Dr Williams repeats his earlier findings that the audiogram he arranged to be conducted in 1997 "showed evidence of a bilateral sloping high frequency deafness consistent with past noise exposure". By this time Dr Williams was aware of the applicant's complaints of noise at work. He nevertheless went on to say that the partial deafness arises from the applicant's past shooting and exposure to motor cycles. He states that he thought that this had been aggravated by the more recent bush dance "causing the ongoing tinnitus".
In subsequent reports Dr Williams attributes noise at the applicant's workplace as partly causing his partial high frequency deafness. In his report dated 13 April 1999 (Exhibit A), he says that the excessive noise at work is at least partly responsible. In his report dated 26 May 1999 (Exhibit A) he opines that the excessive noise at work "on the balance of probability … materially contributed to" the applicant's partial deafness. He explains that after the initial onset "[f]urther exposure to noise is certainly one of the triggering agents of tinnitus".
In giving evidence to the tribunal, Dr Williams explained that the hair cells in the inner ear are very fragile and, with noise, are injured gradually and waste away. This manifests itself through the condition of bilateral high frequency deafness. This process occurs through aging and thus noise exposure causes a premature old age hearing condition. Dr Williams said that the condition often takes a long time to develop and so, for example, it might be caused by a noisy job over many years, but not be detected until the person leaves the job. Dr Williams referred to noisy work environments such as coal mines and timber mills as the usual work environments that cause high frequency deafness. He considered that the applicant was affected by the ambient loud noise of his workplace, and that to a degree his ears were irritated, or to a minor degree they were damaged, by the exposure to the noise at work. He thought the work environment aggravated the applicant's tinnitus.
In answering questions about the level of noise that might be required for damage to occur to cause any permanent hearing loss, Dr Williams agreed that a noise of in excess of 85 decibels over a constant period would be required. He said that 85 decibels was a very loud noise and that he couldn't imagine it occurring in an office environment. He accepted that under Australian industrial standards, hearing protection was required only in the presence of a constant noise of this level. He further accepted that a noise level of 50 decibels over an 8-hour day could not cause physical damage. He, however, thought that it could cause psychological aggravation by reason of the process of recruitment for the duration of the noise.
Dr Williams explained that the psychological phenomena of recruitment, or perceiving noise at a higher level than it actually is, is commonly experienced by a person who has suffered physical damage in the ear, or is suffering from Meniere's disease. However, he stated in his report of 8 March 1999 (Exhibit A) that he did not agree with Dr Blaszczyk's diagnosis of Meniere's disease – the applicant having no history of vertigo. Nevertheless, Dr Williams did not exclude the possibility of either past noise exposure or Meniere's disease having caused damage to the applicant's ears.

Dr Williams agreed that the applicant's noisy work environment was not the cause of tinnitus but it was an aggravating factor at that time. He did not know whether it caused further damage. He conceded that the noise had to be a high level of noise to cause further physical damage. Without proof of further damage having occurred Dr Williams said he would have to accept that the work noise caused recruitment and discomfort, but no further damage. He said that on the history given it seemed that the work noise could have caused the applicant's tinnitus to become permanent. However, he was unable to say how this might have occurred.
Dr Blaszczyk, ear, nose and throat surgeon, in his report dated 12 August 1999 (Exhibit 1), confirmed that he carried out a right tympanoplasty on 28 March 1983, in which he successfully sealed the perforation in the applicant's right ear. Audiometry, post-operatively on 19 December 1983, confirmed his hearing was within normal limits.
Dr Blaszczyk saw the applicant again on 20 July 1999, then complaining of constant tinnitus; his left ear being more affected than his right. The applicant said that he could not hear as well as he used to in the presence of background noise. He reported the onset of his hearing problem as occurring after the bush dance and that he was treated for a viral infection. He told Dr Blaszczyk that from then until the present he had intermittent roaring tinnitus which subsides leaving him with a persistent low-grade tinnitus. He further reported that from May 1997 he suffered a recurrence of the roaring tinnitus which would tend to occur every two to three months and would be associated with a fullness in his ears and he felt that his hearing fluctuated. He described that those symptoms settled and that he is left with a low-grade tinnitus.
Dr Blaszczyk concluded that the applicant suffered from two different conditions. One was the roaring tinnitus associated with fullness and fluctuating hearing loss, which he thought, suggests cochlear hydrops. The other, Dr Blaszczyk thought was the development somewhere between December 1983 and August 1997, the dates of the two audiograms, of a high tone sensorineural deafness. Dr Blaszczyk considered that the noisy computer room did not generate noise of the order that should cause the applicant a hearing loss from acoustic trauma, and that the deafness was not work-related.
Dr Richard Vance, a hearing, ear, nose and throat specialist consultant, examined the applicant on 27 October 1998 (T25) and arranged for hearing tests to be conducted by an audiologist, Ms Antognelli. The test results indicated mild to moderate sensori loss bilaterally. 11.3% loss of hearing was attributed to the applicant's APS employment (T25), but without explanation. Ms Antognelli assumed a history that noise exposure had not been of a high level prior to the applicant's APS employment and that the sensori neural loss "is a consequence of earlier ear infections and later age degenerative changes".
Dr Carroll, specialist ear, nose and throat surgeon, in his report dated 1 March 2000 (Exhibit 2), explains that tinnitus is experienced by some 30% of the general population and it is a common complication of any sensorineural hearing loss irrespective of causation. He pointed out that the noise levels required to cause noise induced tinnitus are identical with those required to sustain noise induced hearing loss. Noise levels sufficient to cause communication difficulty, he said, in no way relate to levels which are potentially injurious to hearing. Dr Carroll is of the opinion that a noise level of 85 decibels for the duration of an 8-hour day could cause a hearing loss over a working life of 40 to 45 years. He explained that if the intensity of the noise increases the duration reduces before hearing loss can occur. He described 85 decibels as being loud enough to drown out a loud voice. He thought that 46.5 decibels was a reasonable noise level reading for an office which would cause no damage over an 8-hour day.
Dr Carroll agreed that the applicant was likely to recruit noise at certain levels, but he was of the opinion that when the applicant is removed from the noise, the recruitment of noise would cease. He said that while recruitment causes noise, it does not cause injury, and it can't cause physical damage or permanently aggravate a hearing condition. Recruitment of noise passes when the noise passes.
Dr Carroll agreed that tinnitus can be the result of hearing loss or Meniere's disease. He thought it possible that prior to 1997 the applicant suffered hearing loss and tinnitus of which he was unaware. He does not accept that the level of work noise as evidenced by the tests conducted in September 1997 in the Mort Street office could have caused or aggravated damage to the applicant's ear or tinnitus condition. He said that the applicant would not be more susceptible to noise damage by reason of a pre-existing hearing loss – the opposite was the case, as noise induced hearing loss slows with time. He thought that the stress of noise from recruitment could not aggravate tinnitus or Meniere's disease. It only had a psychological effect for the duration of the noise.
Dr Williams expected that with age the applicant's hearing will slowly deteriorate and that being fitted with hearing aids might help him. Ms Antognelli, audiologist, suggested that the applicant needed hearing aids for communication and for the tinnitus – though she reported the need to review the response to hearing aids in view of the tinnitus (T25). Dr Carroll saw no merit in the applicant being fitted with a hearing aid. He explained that it is difficult to fit a hearing aid if a person is experiencing strong recruiting as it makes a loud sound louder. In his experience his patients are generally not happy with the result and that hearing aids are less than effective in that situation. He does not recommend a hearing aid for the applicant on the history he was given.
Conclusions
On the whole of the evidence available it is clear that the noise levels in the area in which the applicant worked in the relevant period were higher than acceptable levels for an office environment and caused him and other workers discomfort and irritability and at least temporary symptoms. However, there is no evidence that the noise was of such high level as could cause injury damage to the applicant's ears or his hearing in the period of 7 months. According to the medical evidence a very high level of noise would be required.
Taking the whole of the medical evidence into account I find that it is most likely that the applicant suffered irritation and discomfort caused by the process of recruitment in the presence of a noisy work environment between May and September 1997. This occurred as a consequence of a pre-existing tinnitus and partial bilateral high frequency deafness condition. The applicant first reported the onset of the roaring tinnitus and temporary reduction in his hearing levels after his exposure to loud music in 1996. He told Dr Williams in August 1997 that he had suffered from roaring tinnitus intermittently thereafter. When the applicant saw Dr Williams in February 1999 the roaring tinnitus had settled. The roaring tinnitus was the product of recruitment, clearly triggered by the machine noise at work. Dr Williams was of the view that the applicant had previously suffered damage to his ear. Dr Blaszczyk thought the applicant suffered from Meniere's disease. Either of these conditions accounts for the development of tinnitus prior and unrelated to the noisy work environment.
I find that the applicant suffered a temporary aggravation to his pre-existing tinnitus condition, which caused him irritation, discomfort and hearing difficulties between May and September 1997 which was materially contributed to by his employment.
The temporary aggravation of the applicant's symptoms and the roaring tinnitus did not incapacitate him from work. I do not know if the applicant thereby incurred medical or other expenses which are compensable under the Act. If the applicant has incurred medical or other expenses as a consequence of having to seek advice, or have tests, or receive treatment for the aggravation of symptoms he suffered in the period May to September 1997, it follows that he would be entitled to compensation for those expenses pursuant to section 16 of the Act. There is no evidence before me to make such a finding, and I have not been asked to decide that issue.
The applicant is no longer working in that environment. He complains now of ongoing low-grade tinnitus, which, when taking into account the whole of the evidence relating to the noise levels in his work environment in 1997, the medical evidence does not support the proposition that any permanent damage was likely to have been sustained. On the evidence the applicant's ongoing tinnitus and partial hearing loss can not be attributed to his employment and his employment has not materially contributed to it.
Decision
I affirm the decision under review.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Date/s of Hearing  9 March 2000; 6 April 2000
Date of Decision  11 July 2000
Counsel for the Applicant        Mr Stuart Pilkinton
Solicitor for the Applicant         Higgins Solicitors
Counsel for the Respondent    Mr Nick Polin
Solicitor for the Respondent    Sparke Helmore