Chard and Telstra Corporation Limited

[2008] AATA 899

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 899

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2102

GENERAL ADMINISTRATIVE DIVISION		)
Re		IAN CHARD

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date8 October 2008

PlaceBrisbane

Decision The Tribunal affirms the reviewable decision. 

.......................[Sgd].......................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Injury – Binaural hearing loss – Gradual hearing loss over time – Permanent impairment – Whether applicant’s degree of impairment less than threshold – Transitional provisions of Safety, Rehabilitation and Compensation Act 1988 considered – Degree of impairment apportioned over period of exposure to work-related noise rather than particular point in time – Degree of impairment below threshold – Whether applicant entitled to compensation for non-economic loss – Not entitled to non-economic loss – Decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 27, 124

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Re Lobb and Commonwealth [1983] AATA 170

Re Nield and Military Rehabilitation and Compensation Commission [2006] AATA 702

REASONS FOR DECISION

8 October 2008 Senior Member Bernard J McCabe         

1.      The applicant, Mr Ian Chard, worked for Telstra between October 1982 and October 2006. His hearing was damaged in the course of his employment. Telstra accepted liability for his injury under the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). These proceedings require that I consider the applicant’s entitlement to compensation for:

· permanent impairment under s 24 of the SRC Act; and

· non-economic loss pursuant to s 27.

2. The issues are complicated because of changes to the law that occurred while Mr Chard was employed by Telstra. Telstra, for its part, says those changes reduce the amount it is required to pay Mr Chard under s 24. Telstra adds that there is no obligation to pay anything under s 27.

3.      I will begin by explaining the legislative scheme before examining the facts of this case. In the course of doing so, I will address what is in effect the key issue of the case: should the applicant’s hearing loss be apportioned over the life of his exposure to work-related loud noise, or should I treat him as being injured at a particular point?

The legislative scheme

4.      The SRC Act commenced on 1 December 1988. Prior to that date, the workers’ compensation entitlements of employees like Mr Chard were regulated by the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”).  

5. Transitional provisions in the SRC Act dealt with claims for compensation lodged after 1 December 1988 in respect of an injury that occurred prior to the commencement of the SRC Act. In those cases, s 124 of the SRC Act permitted an award of compensation where the employee would have been entitled to compensation if the 1971 Act were still in force.

6. The SRC Act changed the way entitlement to compensation was assessed. Individuals were no longer compensated for the loss (or loss of efficient use) of a particular part of the body. Section 24 of the SRC Act focused on “the degree of permanent impairment … resulting from an injury”. The extent of a person’s impairment must now be assessed having regard to the approved Guide: s 24(5). The decision-maker is required to express the degree of impairment that flows from an injury as a percentage: s 24(6). The first and second editions of the Guide refer to the concept of “whole person impairment”, although that approach was called into question by the High Court’s decision in Canute v Comcare (2006) 226 CLR 535. Happily, I do not have to resolve that issue.

7. The new legislation also introduced an impairment threshold in s 24(7). When the SRC Act commenced, an employee could not claim compensation for permanent impairment unless he or she suffered a permanent impairment of at least 10%. That threshold did not apply to claims in respect of injuries sustained prior to the commencement of the Act. The threshold was subsequently lowered with effect from 1 October 2001 in cases of hearing loss. After that date, an employee only need establish that he or she had suffered a 5% binaural hearing loss: s 24(7A). These thresholds are at the heart of the respondent’s case, as I will explain.

Mr Chard’s evidence

8.      I have already explained that Mr Chard took a job with Telstra in October 1982. He had previously worked as a mechanic. He said in his statement that he was required to take a hearing test shortly after he commenced work with Telstra. He says the test showed his hearing was normal. The respondent did not contest that claim, and I accept it.

9.      Mr Chard started work with Telstra as a lines assistant in Dalby. He was promoted to linesman shortly afterwards. He was required to operate and work in proximity to noisy machinery in the course of his job. He said in his statement that he was often required to act as the safety man who was responsible for spotting obstructions and other hazards. He said he could not wear hearing protection because he had to be aware of what was going on and communicate with other workers.

10.     The applicant transferred to the Zillmere depot in 1990. He continued to work as a linesman. There is no dispute that he continued to be exposed to excessive noise in that role. He was trained as a jointer during this period. He said in his statement that he subsequently worked primarily as a jointer in the period 1995 to 2000. He also conceded the machinery he used in his new role was less noisy but insisted he was still exposed to noise from the building sites on which he worked. He said he was also frequently assigned to work as a linesman where he was exposed to the sort of noisy equipment described above. At [21] of his statement, he said:

My exposure to high levels of noise during my employment with Telstra did not stop at the time that I was trained as a jointer. I continued to be regularly exposed to high levels of noise up until the time that I ceased working with Telstra and believe that this later exposure contributed to my hearing loss.

11.     The respondent challenges Mr Chard’s claim about his exposure to noise after 1994 when he commenced work as a jointer. Mr Clark, for the respondent, pointed out in cross-examination that Mr Chard’s claim form (Exhibit 1, at folio 16) says he attributed his hearing loss to “operating machinery (dozers, jackhammers etc) over a 12 year period.” Mr Chard’s response to these questions was evasive. He was reluctant to admit he filled out the claim form, although he ultimately accepted he did so. He said he did not agree with what he wrote. That explanation is difficult to reconcile with the history taken by Dr Anning which records Mr Chard saying he was exposed to noise from heavy machinery between 1982 and 1994 but not thereafter. Ms Scott-Mackenzie, for the applicant, did not challenge this aspect of Dr Anning’s history when he gave evidence. I therefore have no reason to doubt Dr Anning accurately recorded what he was told.

12.     Given Mr Chard’s failure to adequately explain his earlier inconsistent statements and his evasive behaviour in the witness box, I am not persuaded that I should accept his claim that he was exposed to excessive noise after 1994. 

The medical evidence

13.     The applicant called Dr Parker to give evidence at the hearing. Dr Parker is a surgeon specialising in otolaryngology (the study and treatment of disorders of the ears, throat and larynx) and head and neck surgery. Dr Parker confirmed that the damage to Mr Chard’s hearing was symmetrical, which is typical of cases of noise-induced hearing loss. Dr Parker said in his report (Exhibit 3) that the tests he ordered showed a binaural hearing loss of 23.8%. He said in his oral testimony that Mr Chard’s hearing was deteriorating.

14.     Dr Parker said he assumed the damage was done throughout the time Mr Chard worked for Telstra as Mr Chard gave a history of noise exposure up until 2006. Dr Parker added in his oral testimony that it was impossible to apportion the hearing loss as between the periods before and after 1 December 1988. In the absence of specific evidence of when the hearing loss began, he explained, one dated the commencement of the damage to the time when the exposure to noise commenced. He added that if the noise exposure only occurred in the period 1982 to 1994, he would assume the damage was done throughout that more limited period although he explained the hearing loss would continue cumulatively and progressively.

15.     Mr Millar’s report was tendered by the respondent (Exhibit 6). Mr Millar is also a surgeon specialising in otolaryngology and head and neck surgery. He concluded Mr Chard suffered a binaural hearing loss of 23.5%. Mr Millar added that the hearing loss developed on an equally cumulative basis over the life of the applicant’s employment, but he pointed out it was impossible to identify a particular period within that employment that was noisier than other periods. He said if it was necessary to calculate hearing loss in particular periods it was appropriate to work “on an equal time portioned basis.” 

16.     Dr Anning was called to give evidence by the respondent. Dr Anning is an ear, nose and throat surgeon. His report is included in Exhibit 1, at folio 49ff. I have already noted Dr Anning concluded the hearing loss occurred as a result of noise exposure that was confined to the period 1982 to 1994. Dr Anning reported conducting a number of hearing tests. In his oral evidence, he suggested the extra tests were necessary because the initial results were inconsistent with clinical observations. After checking his equipment and procedures, he suggested the anomalous results were likely to be the result of a misunderstanding on the part of Mr Chard, or as a consequence of deliberately uncooperative behaviour.

17.     That is worrying observation. It might indicate a problem with Dr Anning’s procedures, or it might indicate the applicant is, at best, a patient whose history and responses must be treated with care. If the patient was the problem, there must be some question over his behaviour in the course of being examined by the other medical specialists.

18.     After listening to Dr Anning’s evidence, I am satisfied the problem does not lie with his procedures or observations. He was a careful witness who had a clear recollection of what occurred when he examined the applicant. He gave his evidence in a systematic way. His observations were offered in a careful and dispassionate manner. He provided a clear explanation of the testing process and the range of expected outcomes when one conducted tests of this nature. He is obviously experienced and knowledgeable. He concluded the applicant experienced a 21% hearing loss.

19.     All of the doctors reached similar views on the extent of the hearing loss (although Dr Anning reported a slightly lower hearing loss than the other specialists) and its cause. They made different assumptions about the length of time over which the applicant was exposed to excessive noise, although that is because they were provided with different historical accounts by the applicant. All of the doctors agreed it was appropriate to assume the hearing loss that occurred progressively and cumulatively from the start of the noise exposure so that the hearing loss during any particular period should be treated as being a proportion of the total period of noise exposure. I prefer Dr Anning’s estimate of the percentage hearing loss given Dr Anning’s careful testing process and his observations about the reliability of the applicant’s history and responses. I also accept that the hearing loss became permanent shortly after the applicant’s exposure to that noise began in 1982.

Applying the law

20.     Ms Scott-Mackenzie said I should not apportion the hearing loss in this case. She argued that hearing loss was really one injury that was comprised of multiple assaults on the cilia in the applicant’s ears, leading over time to impairment. She said there was not a discrete injury occurring at a particular time; the injury developed by accumulation. The appropriate time to take stock of the injury was presumably when it had become manifest, which meant the injury fell to be assessed under the 1971 Act. Alternatively, an assessment might be made when the assaults on the cilia ceased. Ms Scott-Mackenzie submitted the noise continued up until 2006. That meant the extent of permanent impairment fell to be assessed at that point, under the SRC Act. She said it was not appropriate to apportion the loss as the courts and Tribunal had done in other cases because it was impossible to know with certainty how to make that apportionment.

21.     Mr Clark referred me to a number of authorities in which the Tribunal had apportioned hearing loss between periods and between causes. The essentially arbitrary nature of the apportionment did not trouble the Tribunal in ReLobb and Commonwealth [1983] AATA 170 or Re Nield and Military Rehabilitation and Compensation Commission [2006] AATA 702. I agree with their approach because the alternative would be even more arbitrary. The Tribunal has to decide how much compensation the applicant should receive, and his entitlement will vary depending on the law that is applicable at a given time. Given the medical experts say it is impossible to single out a particular point at which the damage was done, it would be artificial for the Tribunal to fix a time and make an assessment. The only sensible course is for me to accept the medical experts’ advice that the damage occurred over the whole of the period of noise exposure (ie, 1982-1994) and then apportion the loss of hearing over that time.

22. That was the approach adopted in the reviewable decision. The approach resulted in a decision that a payment should be made in respect of loss occurring prior to the commencement of the SRC Act. It also meant the amount of loss attributed to the period after the commencement of the SRC Act until 31 December 1994 resulted in less than a 10% permanent impairment. It follows that the applicant’s loss did not reach the threshold required by the SRC Act for compensation under s 24. There was no dispute as to the respondent’s arithmetic. I accept the delegate’s conclusions.

23. That leaves only the question of an entitlement to compensation under s 27. The applicant’s Statement of Facts and Contentions claims compensation under this provision, although it was not the subject of submissions or evidence at the hearing. The contention can be disposed of shortly, for the reasons set out in the reviewable decision. Section 27(3) of the SRC Act says:

This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

24.     I have already concluded the permanent impairment pre-dated the introduction of the SRC Act. There was no evidence of a claim for compensation for non-economic loss in respect of that impairment being made before the introduction of the relevant bill on 7 December 2000. It follows the application must fail.

Conclusion

25.     The reviewable decision is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:................................[Sgd]..............................................
  Michael Buckingham, Associate

Date of Hearing  11 July 2008
Date of Decision  8 October 2008
Counsel for the Applicant         Ms S Scott-Mackenzie
Solicitor for the Applicant          Slater & Gordon Lawyers
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Sparke Helmore Lawyers