Cook and Telstra Corporation Limited (Compensation) - [2019] AATA 1511

Cook and Telstra Corporation Limited (Compensation) [2019] AATA 1511 (27 June 2019)
Division:GENERAL DIVISION
File Number: 2018/3754
Re:Wallace Cook
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:27 June 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[SGD].......................................
Member D K Grigg
CATCHWORDS
COMPENSATION - employees - whether applicant’s hearing loss is an “injury” or “disease” under the Safety, Rehabilitation and Compensation Act 1988 – whether there has been an increase in the degree of permanent impairment suffered by the applicant, of 5% or more, as a result of his accepted noise induced hearing loss such that further compensation for permanent impairment and non-economic loss is payable under sections 24 and 27 of the Act - decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Australian Postal Corp v Simon John Burch [1998] FCA 944
Comcare v Laidlaw[1999] FCA 40
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) CLR 286
O’Kane and Comcare [2013] AATA 722
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Re Sandercock and Military Rehabilitation and Compensation Commission[2013] AATA 517
REASONS FOR DECISION
Member D K Grigg
27 June 2019
INTRODUCTION & CLAIMS HISTORY

Mr Wallace Cook is 76 years of age. For 40 years, between December 1957 and January 1997, Mr Cook was employed as a Technician by Telstra.[1]
[1] Exhibit 1, T Documents, T22, page 82, Report of Dr Allison, dated 1 March 2018.
In October 2001 Mr Cook lodged a workers’ compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for hearing loss.[2] Telstra is a licensee[3] under the Act and as such self-insures its workers’ compensation claims. The relevant provisions of the Act which refer to Comcare apply to Telstra as a licensee under the Act.
[2] Exhibit 1, ST Documents, ST5, page 1, Statement of Mr Cook, dated 17 October 2001.
[3] Section 4 of the Act defines a “licensee” to mean “a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.”
In February 2002 Professor Bruce Black, Otolaryngologist, reported that Mr Cook’s hearing loss was most probably caused by his work at Telstra.[4]
[4] Exhibit 1, ST Documents, ST2, page 3, Report of Professor Black dated 20 February 2002.
A determination was issued by Telstra accepting liability to pay compensation for bilateral hearing loss assessed at 27.6% on 22 February 2002.[5]
[5] Exhibit 1, ST Documents, ST6, Correspondence issued by GIO to Mr Cook dated 22 February 2002.
On 5 March 2002 Mr Cook lodged a further workers’ compensation claim for the permanent injury of “hearing loss, associated with high-pitched tinnitus”.[6] Mr Cook contended that he was entitled to an additional 5% in respect of permanent tinnitus and that his total binaural hearing loss was 40%.[7]
[6] Exhibit 1, T Documents, T6, pages 16 - 26, Compensation Claim for Permanent Injury dated 5 March 2002.
[7] Exhibit 1, T Documents, T17, pages 54 – 56, Determination dated 7 March 2012.
On 7 October 2002 Mr Cook lodged a further workers’ compensation claim for permanent injury “hearing loss associated with high pitched tinnitus”[8] on the basis that he had suffered additional hearing loss (in that his binaural hearing loss had increased to 43.8%) which he also attributed to his employment with Telstra.[9]
[8] Exhibit 1, T Documents, T9, pages 31 - 39, Compensation claim for permanent injury dated 7 October 2002.
[9] Exhibit 1, T Documents, T9, pages 31 - 39, Compensation claim for permanent injury dated 7 October 2002.
On 20 December 2002 Professor Black, reported that the increases in Mr Cook’s hearing loss “are regarded as progression of age changes rather than service related”.[10] Professor Black explained that hearing loss assessments are adjusted to take into account age related factors. These adjustments are done using accepted processes determined by the National Acoustic Laboratories.[11]
[10] Exhibit 1, ST Documents, ST7, page 8, Report of Professor Black dated 20 December 2002.
[11] Exhibit 1, ST Documents, ST4, pages 7 - 8, Report of Professor Black dated 25 March 2002.
In February 2003 Mr Cook was referred by a Telstra claims officer to Dr Timothy Cooney, Otolaryngologist, for an assessment.[12] The claims officer informed Dr Cooney that
[12] Exhibit 1, T Documents, T10, pages 40 - 42, Request for assessment dated 21 February 2003.
Mr Cook had not been exposed to any work-related noise since 1997 and asked what factors may be responsible for any increased hearing loss.
Dr Cooney reported on 26 February 2003 that:[13]
[13] Exhibit 1, T Documents, T11, page 43, Report of Dr Cooney dated 26 February 2003.
(a)using the National Acoustic Laboratories (NAL) tables of 1988, Mr Cook’s binaural percentage hearing loss on:
(i)1 October 2001 is 40%;
(ii)2 October 2002 is 43.8%; and
(iii)on the audiogram on 3 December 2002 is 38.8%;
(b)there has been no increase in the level of hearing loss; and
(c)a small percentage variation was in the range of experimental error and is most likely due to a change in the audiological conditions of testing as well as variables such as how Mr Cook felt on the day.
As a result of Dr Cooney’s report, on 6 March 2003 a senior claims officer advised
[14] Exhibit 1, T Documents, T12, pages 44 – 47, Determination – accept permanent impairment and non-economic loss dated 6 March 2003.
Mr Cook that he had determined that Telstra was liable to pay compensation for permanent impairment and non-economic loss, in accordance with sections 24 and 27 of the Act, in respect of Mr Cook’s binaural hearing loss at a level of 40% and for his tinnitus.[14]
On 3 November 2011 Mr Cook attended an audiologist assessment with Mr Ryan Allen, Audiologist. Mr Allen reported that Mr Cook required replacement hearing devices with new technology.[15] In December 2011 Mr Allen reported that there had been a moderate decline in Mr Cook’s hearing thresholds bilaterally since his last test in 2007, and that this is the reason it was recommended that he be provided with premium level hearing devices.[16]
[15] Exhibit 1, T Documents, T15, pages 50 – 51, Report of Mr Allen dated 7 November 2011.
[16] Exhibit 1, T Documents, T16, page 53, Report of Mr Allen dated 13 December 2011.
On 7 March 2012 a compensation claim manager determined that Telstra was liable to pay compensation for hearing aids pursuant to section 16 of the Act.[17]
[17] Exhibit 1, T Documents, T17, pages 54 – 56, Determination – accept section 16 hearing aids dated
In November 2017 Dr Annemaree Daley, Audiologist, wrote to Telstra and provided a quote for new hearing devices as Mr Cook’s current hearing devices had worn out and were no longer working effectively.[18]
[18] Exhibit 1, T Documents, T18, pages 57 – 60, Report of Dr Daly dated 23 November 2017.
On 1 December 2017 Mr Cook wrote to Telstra and advised that since 2003 he had noticed significant further hearing loss and that his hearing loss has increased to 70.8%. Mr Cook lodged a new compensation claim for permanent impairment and non-economic loss to reflect the decrease in his hearing ability.[19]
[19] Exhibit 1, T Documents, T19, pages 61 – 71, Letter from Mr Cook to Telstra enclosing compensation claim permanent impairment dated 1 December 2017.
Audiology tests conducted in February 2018 indicated that Mr Cook had bilateral moderate to profound sensorineural hearing levels and that he required new hearing devices to be fitted and adjusted.[20]
[20] Exhibit 1, T Documents, T20, pages 72 - 76, Report of Belinda Clark Audiometrist dated 8 February 2018.
As a result of Mr Cook’s new claim for compensation for permanent impairment, Telstra arranged for him to be examined by Dr Paul Allison, Otolaryngologist.[21]
[21] Exhibit 1, T Documents, T21, pages 77 – 79, Request for a report from Dr Alison dated 14 February 2018.
On 1 March 2018 Dr Allison reported that:[22]
[22] Exhibit 1, T Documents, T22, pages 80 - 85, Report of Dr Allison dated 1 March 2018.
(a)Mr Cook has bilateral sensorineural deafness and tinnitus;
(b)in his opinion Mr Cook’s occupational binaural hearing impairment is 25.7%;
(c)using the guide to the assessment of the degree of permanent impairment edition 2.1 this equates to a Whole Personal Impairment (“WPI”) rating of 12.9%;
(d)Mr Cook is entitled to 5% WPI for severe continuous tinnitus;
(e)the audiogram showed an overall over binaural hearing impairment of 63%;
(f)“this increased hearing loss that has occurred over the last 15 years is not related to noise exposure. It is due to presbycusis and hereditodegenerative causes and is not in my opinion compensable”;
(g)in his opinion the compensable loss was 12.9% WPI (due to deafness) and 5% WPI for tinnitus;
(h)Mr Cook currently has 71.3% deafness;
(i)Mr Cook does have industrial deafness due to noise exposure but there are also ageing and hereditodegenerative causes for the increase; and
(j)the deterioration has not been caused by his employment with Telstra as noise damage does not continue after the exposure has ceased.
As a result of Dr Allison’s report, Telstra advised Mr Cook that it had determined that:
(a)Mr Cook still suffered from the compensable condition and that it was liable to pay compensation for the cost of his hearing devices and their fitting and maintenance pursuant to section 16 of the Act;[23] but
(b)it was not liable to pay compensation for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Act on the basis that the deterioration in his hearing loss is due to age and hereditodegenerative factors not related to his accepted compensable condition.[24]
[23] Exhibit 1, T Documents, T23 pages 86 – 90, Determination – section 16 – hearing aids dated 6 April 2018.
[24] Exhibit 1, T Documents, T24, pages 91 – 93, Determination – permanent impairment and non-economic loss dated 18 April 2018.
On 9 May 2018 Mr Cook requested Telstra reconsider its determination to deny compensation for a permanent impairment.[25] Mr Cook submitted that:
(a)Dr Allison had not been provided with copies of all of the audiology tests that he had undertaken between 2003 and 2017 which he believes were necessary for Dr Allison to form an accurate opinion;
(b)he disagreed with Dr Allison’s assertion that he had not been exposed to noise since his retirement in 1997. According to Mr Cook he is exposed to high levels of noise in many normal living activities as a result of his hearing loss;
(c)the increase in his hearing loss is well outside the normal range of an adult even after allowing the ageing factor;
(d)a hearing-impaired person is at significantly greater risk of further hearing loss at lower levels than a normal hearing person;
(e)high gain hearing aids are on the balance of probabilities likely to cause even more damage to hearing in noisy situations;
(f)in 2002 a comprehensive medical examination to test for hereditodegenerative causes was conducted but not made available to Dr Allison and the findings were that there were no abnormal hereditodegenerative causes present.
[25] Exhibit 1, T Documents, T25, pages 94 - 103, Request for reconsideration dated 9 May 2018.
Mr Cook provided a copy of a report dated 21 January 2002, by Dr A. Tonakie, Radiologist, which indicated that an MRI of Mr Cook’s head showed there was no significant abnormality.[26]
[26] Exhibit 1, T Documents, T25, page 100, Report of Dr A. Tonakie dated 21 January 2002.
On 15 June 2018 Telstra decided to affirm the determination that Telstra was not liable to pay compensation under sections 24 and 27 of the Act.[27]
[27] Exhibit 1, T Documents, T26, pages 104 – 105, Reviewable Decision – permanent impairment and non-economic loss dated 18 June 2018.
On 30 June 2018 Mr Cook applied to this Tribunal for a review of the Reviewable Decision.[28]
[28] Exhibit 1, T Documents, T2, pages 3 - 8, Application for Review of Decision dated 30 June 2018.
ISSUES FOR DETERMINATION
The issues for determination are whether:
(a)There has been an increase in the degree of permanent impairment suffered by the applicant, of 5% or more¹, as a result of his accepted noise induced hearing loss; and if yes,
(b)Mr Cook is entitled to compensation for an increased permanent impairment and non-economic loss under sections 24 and 27 of the Act.
LEGISLATIVE REQUIREMENTS
The right to compensation for an employee under the Act is conferred by section 14(1) of the Act which provides that Comcare is:
… liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in section 5A(1)(b) of the Act to mean, so far as this case is concerned:
an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
“Disease” is defined in section 5B(1) of the Act to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
“Impairment” is defined in section 4(1) of the Act to mean:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
“Permanent” is defined in section 4(1) of the Act to mean likely to continue indefinitely.
The right to compensation for an employee for injuries resulting in permanent impairment under the Act is conferred by section 24 of the Act which relevantly provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment … ; and
(b)Comcare determines that the degree of permanent impairment is less than 10%
an amount of compensation is not payable to the employee under this section.
…
(emphasis added)
Section 25(5) of the Act provides:
If Comcare has made a final assessment of the degree of permanent impairment of an employee constituted by a hearing loss, no further amounts of compensation are payable to the employee in respect of a subsequent increase in the hearing loss, unless the subsequent increase in the degree of binaural hearing loss is 5% or more.
If Comcare is liable to pay compensation to an employee for a permanent impairment under section 24 of the Act, Comcare is also liable to pay additional compensation in accordance with section 27 of the Act to the employee in respect of that injury for any non-economic loss suffered by the employee because of that injury or impairment.
Section 5B(2) of the Act sets out that in determining whether an ailment or aggravation is contributed to, to a significant degree, by an employee's employment, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
The Act defines “significant degree” in section 5B(3) to mean a degree that is substantially more than material.
Section 7(6) of the Act provides:
(6)An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a)the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
EVIDENCE
At the hearing Telstra called Dr Allison to give evidence. Mr Cook also gave evidence at the hearing.
Evidence of Mr Cook
Mr Cook demonstrated at the hearing the degree to which he had to turn up the volume on his hearing aids in order to hear. There is no dispute about the extent of Mr Cook’s hearing loss.
Mr Cook says that there is no history of deafness in his family and no identified hereditodegenerative diseases causing his hearing loss.
Mr Cook explained that his hearing loss has deteriorated significantly and there are three parts of that hearing loss:
(a)40% of his hearing loss has already been compensated for;
(b)8.2 or 8.3% is not compensable as it related to age-related hearing loss; and
(c)a disputed 22.3 or 23% hearing loss.
Mr Cook submits that the 8.3% age related hearing loss (which is based on the NAL tables) already takes into account any hereditodegenerative causes.
Report of Dr Allison dated 1 March 2018
A summary of Dr Allison’s opinion is set out in paragraph 17 above.
Report of Dr Allison dated 27 September 2018[29]
[29] Exhibit 7, Report of Dr Allison, dated 27 September 2018.
In September 2018 Telstra provided Dr Allison with further audiology reports and the report of Dr Cooney (see paragraph 9 above). Dr Allison then provided a supplementary report. In that report Dr Allison explained:
·Loud noise damages hair cells in the cochlea, the hearing organ.
·The cochlea is coiled, like a seashell. Within the cochlea there are 20000 hair cells. The hair cells that respond to low frequencies are at the centre of the cochlea, with high frequency stimuli being picked up by hair cells in the outer part.
·Damage is caused by a combination of the volume of the noise, the length of exposure and the repetition, together with a person’s individual susceptibility to noise induced hearing loss.
·The activities of daily living even including listening to television at very high volume, using headphones, mowing and boating do not cause noise induced hearing loss.
·The audiogram [provided by Mr Cook] does not provide any insight into the progression of Mr Cook’s hearing loss after he ceased employment with Telstra and there was no further excessive noise exposure.
·There is always a degree of deterioration over time due to presbyacusis in a person of Mr Cook’s age. However, his hearing has deteriorated significantly and this is due to hereditodegenerative causes.
·The damage does not worsen once loud noise exposure has ceased
(emphasis added)
Oral evidence of Dr Allison

At the hearing Dr Allison explained:
·that there are basically two types of hearing loss…conductive where there is a blockage [and] …sensorineural deafness which involves the hearing nerve not working properly (which can occur for example from exposure to excessive noise).
·Presbycusis refers to hearing loss due to age. The amount of loss varies. Age related hearing loss within certain limits is referred to a presbycusis.
·People sometimes lose their hearing rapidly and there is no known reason or apparent cause – if way outside normal parameters, it is referred to as hereditodegenerative.
·Noise damage damages hair cells in the cochlea.
·Noise induced hearing loss is characterised by high frequency sensory neural deafness and it is always around the 4kHz frequency.
·Initially will see a “notch” on the hearing test around 4 kHz frequency. As hearing deteriorates, there may be other areas of problems indicated on hearing test results as well.
·It is a stated opinion of the Australian Society for Otolaryngology Head and Neck Surgery that noise induced hearing loss does not get worse when the noise exposure ceases.
·Exposure to loud TVs and headsets, for example, do not in general cause hearing loss.
·Mr Cook’s hearing tests show no noise damage in the last 15 years.
·The hearing test results from 1 February 2002[30] show that:
[30] Exhibit 1, T Documents, T5, page 15, Hearing Assessment Report (attachment) to Report of Clare O’Rourke, Audiologist, dated 1 February 2002.
oIn the right ear there is not much evidence of noise damage and indicates there is something else involved with Mr Cook’s hearing loss.
oThe right ear is not showing damage at 4kHz frequency.
oThere is clearly noise damage in the left ear.
·The angiogram from 23 November 2017 shows:
oSignificant additional deafness.
oThe notch effect at 4kHz is totally gone and the other frequencies have dropped down as well indicating worsening damage other than from noise.
·He compared the binaural hearing loss between the 2002 and 2017 tests:
“if Mr Cook had noise damage it should be worse at 4,000 cycles…because that’s the frequency that’s affected by loud noise. Now, in the 15 years … between 2002 and 2017 his hearing loss deterioration, every frequency has deteriorated…that shows that this cannot be noise damage that’s caused Mr Cook’s additional deafness”.
Dr Allison explained to Mr Cook at the hearing that:
“…all I can say is that your hearing loss, you’re one of the unfortunate people who have a hearing loss that is way outside the normal limits, sorry, the normal variation that we see but you’re not the only one. Every ear specialist has patients who lose hearing at a far more accelerated rate than average and you can’t put it down to normal presbycusis unfortunately. But, you know, unfortunately my opinion is based on the audiological findings and I can’t change them, that’s what I’m seeing…
Certainly your hearing has significantly deteriorated and I think that’s a terrible thing you’re having to put up with but I can’t - in all honesty I cannot see any noise damage having occurred to your hearing since you ceased employment with Telstra back in 1997. It’s just not there on the tests
…there’s no progression after the noise exposure ceases and having to listen to noises louder because of the deafness after doesn’t cause additional problems.”
CONTENTIONS
Mr Cook’s Contentions
Mr Cook’s contentions are set out at paragraph 19 above. Mr Cook also contends that section 7(6) of the Act applies on the basis that but for his accepted work induced hearing loss, his present degree of impairment would be significantly less.
Telstra’s Contentions
Telstra contends that:
(a)section 7(6) of the Act does not apply because Mr Cook’s Compensable Condition is an “injury” not a disease; and
(b)any increased hearing loss has not arisen as a result of Mr Cook’s accepted noise induced hearing loss.
Is Mr Cook’s hearing loss a “disease” or “injury” for the purpose of the Act
Section 7(6) of the Act only applies to “diseases”.
The Federal Court in Comcare v Laidlaw[1999] FCA 40 Finn J dealt with the construction to be given to section 7(6) of the Act. Finn J explained:
[4]… for a disease to be compensable the employment must contribute to it "in a material degree".
[23]… before the deeming effect of s 7(6) can be invoked by a claimant to show that his or her incapacity "resulted from" a disease or its aggravation that claimant must first satisfy the anterior condition that he or she suffers a s 4 "disease" with its attendant contribution requirement.
[24]Put compendiously, if a claimant wishes to establish a liability in Comcare to compensate for a disease-based injury resulting in incapacity, he or she must first establish positively that a disease falling within the s 4 definition is suffered, but then, in making out the s 14(1) requirement that that disease has resulted in an incapacity for work, he or she can avail of the deeming effect of, but is not limited to,
s 7(6).
(emphasis added)
The Full Federal Court in Australian Postal Corp v Simon John Burch [1998] FCA 944 held:
The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need not be a causal connection.
(emphasis added)
Telstra referred to the Tribunal’s decision in O’Kane and Comcare [2013] AATA 722 which noted that there is no consistent view as to whether hearing loss is characterised as an “injury” or “disease”. In Re Sandercock and Military Rehabilitation and Compensation Commission[2013] AATA 517 (“Sandercock”) the Tribunal noted that an “injury” was “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” as opposed to a “disease” which is constituted by an underlying pathology.
In Sandercock the Tribunal identified that:[31]
“… According to a report obtained from the National Institute on Deafness and Other Communication Disorders, noise induced hearing loss (NIHL) can take two forms:
...loud impulse noise, such as an explosion, or loud continuous noise... Exposure to impulse and continuous noise may cause only a temporary hearing loss...The symptoms of NIHL increase gradually over a period of continuous exposure.
…
There is no consistent view in the cases as to whether hearing loss is an ‘injury or a ‘disease’ for the purposes of the 1988 Act. However, the distinction between an ‘injury’ in its primary sense and a ‘disease’ was described by the High Court as the difference between ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ as compared with the ‘underlying pathology’ that constitutes a ‘disease’.

Applying that distinction, acoustic trauma, if it results in sudden damage to sensitive hair cells of the inner ear as well as the hearing nerve would amount to an ‘injury’; while presbyacusis, being a slowly degenerative process associated with ageing, would amount to a ‘disease’.”
(emphasis added)
[31] [2013] AATA 517 at [26] – [28].
The High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (at 481-482) explained that “suddenness” “is not necessary for there to be an “injury” in the primary sense” and referred to Kennedy Cleaning Services Pty Ltd v Petkoska (2000) CLR 286 where Gleeson CJ and Kirby J stated (at 300 [39]):
“[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterization as an ‘injury’ in the primary sense of that word.”
It is clearly established that whether a person’s hearing loss in a particular matter constitutes an injury or disease for the purpose of the Act is to be determined on its own facts.[32]
[32] See also Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242.
As explained by Dr Allison, Mr Cook’s Compensable Condition was caused by a physiological change therefore his hearing loss is best characterised as an “injury”. Section 7(6) of the Act has no application in this matter.
CONSIDERATION
It is not in dispute that Mr Cook’s hearing loss has deteriorated.
Mr Cook says he has been exposed to high levels of noise between 2003 and 2018. There is no corroborating evidence of this. There is also no evidence that Telstra is responsible for any noise related damage incurred by Mr Cook after he left his employment. The Tribunal notes that in 2003 Dr Cooney also reported that Mr Cook had not been exposed to any work related noise since 1997.[33]
[33] Exhibit 1, T Documents, T11, page 43, Report of Dr Cooney dated 26 February 2003.
At the hearing Dr Allison explained that when people have hearing loss which is outside the normal variant with no apparent cause, it is the common practice to refer to this as resulting from hereditodegenerative causes, because it cannot be blamed just on presbycusis (i.e. age related causes).
Based on the medical evidence available, the Tribunal is not satisfied that Mr Cook’s further deterioration in his hearing loss is attributable to his Compensable Condition and is not satisfied on the evidence that his reported symptomology can be attributed solely or significantly to events which took place 24 years ago.
As was explained by Dr Allison, constitutional and hereditodegenerative factors are of great importance when considering unexplained hearing loss.
In relation to Mr Cook’s submission that the 8.3% age related hearing loss (which is based on the NAL tables) already takes into account any hereditodegenerative causes, no documentation was produced to support this contention. Mr Cook was given leave after the hearing to provide an appropriate reference but despite his endeavours he was unable to obtain any corroborating information.
There was no independent expert medical evidence to contradict Dr Allison’s opinion or to support Mr Cook’s contentions.
Section 24(1) of the Act provides for payment of compensation only where it is the ‘injury’ which results in the permanent impairment. There is no medical evidence before the Tribunal to support Mr Cook’s contention that the Compensable Condition has resulted in his level of impairment beyond that already compensated. Further, there is no medical evidence before the Tribunal which indicates that that there has been an increase of 10% in the WPI resulting from the tinnitus as required by section 25(4) of the Act.
If Mr Cook has suffered further injuries from new noise exposure, it is not the responsibility of Telstra.
Therefore, the Tribunal finds that no additional compensation is payable to Mr Cook under sections 24 and 27 of the Act.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..........................[SGD]..........................................
Associate
Dated: 27 June 2019

Date of hearing:

18 April 2019

Date reserved:

6 June 2019

Applicant:

In person

Counsel for the Respondent:

Mr Clark

Solicitors for the Respondent:

Sparke Helmore Lawyers

7 March 2012.

Date of hearing:	18 April 2019
Date reserved:	6 June 2019
Applicant:	In person
Counsel for the Respondent:	Mr Clark
Solicitors for the Respondent:	Sparke Helmore Lawyers