Costigan v University of Wollongong
[2022] NSWPIC 44
•4 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Costigan v University of Wollongong [2022] NSWPIC 44 |
| APPLICANT: | Peter John Costigan |
| RESPONDENT: | University of Wollongong |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 4 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of bilateral hearing aids; Held - although occupational hearing loss may have been mathematically assessed as low on the whole of the evidence including the applicant’s exposure over employment of 41 years and his direct evidence of difficulty with hearing and tinnitus going back to 2000 the applicant’s work-related noise exposure materially contributed to his need for hearing aids; award in favour of the applicant. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury in the nature of bilateral sensorineural hearing loss arising out of or in the course of his employment with the respondent on 14 July 2006 (deemed). 2. The respondent was the last employer who employed the applicant in employment to the nature to which the injury was due for the purposes of section 17 (1) (a) (i) of the Workers Compensation Act 1987. 3. The provision of hearing aids is reasonably necessary and results from the applicant’s injury. 4. The respondent is liable to pay for the cost of hearing aids. 5. The respondent is to pay the applicant for hearing aids as claimed on production of accounts and/ or receipts pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Peter John Costigan (the applicant) is a 75 year old man who was employed by University of Wollongong (the respondent) between 17 June 1965 and 14 July 2006 as a laboratory manager.
The applicant alleges that in the course of his employment he was exposed to the noise of angle grinders, motors, generators, hammering and circular and band saws. He claims that this exposure was for about four to five hours per day, five days per week.[1]
[1] Application to Resolve a Dispute (Application) at page 9.
The only claim made in these proceedings is for the cost of binaural digital hearing aids.
ISSUES
The sole issue is whether the respondent is liable to pay the applicant the cost of binaural hearing aids.
EVIDENCE BEFORE THE COMMISSION
The following documents were admitted into evidence and were before the Commission:
(a) Application and attachments lodged 17 May 2021 (Application);
(b) Reply and attachments lodged 31 May 2021 (Reply);
(c) Application to Admit Late Documents filed by the applicant’s solicitor lodged 24 November 2021 and attachments (AALD1), and
(d) Application to Admit Late Documents filed by the respondent’s solicitor lodged 9 December 2021 and attachments (AALD2).
ORAL EVIDENCE
No oral evidence was given.
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing before the Commission by telephone on 15 December 2021. Mr Hallion of counsel instructed by Mr Bechelli appeared for and with the applicant. Mr Gaitanis of counsel instructed by Ms Maiulo appeared for the respondent. Ms Ryan represented the self-insurer.
The matter initially proceeded to conciliation, but regrettably was not capable of resolution. I was satisfied that the parties to the dispute understood the issues relevant to the dispute and that I had used my best endeavours to attempt to effect settlement. That being the case, the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
PRELIMINARY ISSUE
Objection was taken by the respondent to admission into evidence of a report of Bay Audio Mittagong dated 24 November 2021 and submissions were made by the parties on that issue. Those submissions were sound recorded and are available to the parties on request, but it is sufficient to say that I determined that the report should be in evidence although submissions could be made concerning the weight to be given to it.
SUBMISSIONS
Counsel for both parties provided oral submissions which I set out in brief below.
The applicant’s submissions
The applicant referred to the decision of Member Capel in Winters.[2] That case is support for the proposition that hearing aids can be regarded as reasonably necessary notwithstanding that they address only a small level of industrial deafness.
[2] Winters v Endeavour Energy [2021] NSWPIC 375.
In the present matter Dr Howison and Dr Payten provided assessments of the employment involvement in the applicant’s deafness but both employ concepts not consistent with the law in that they appear to address scientific certainty rather than the balance of probabilities.
Dr Macarthur on 20 June 2020 assessed an employment contribution of 6.3% occupational exposure, Dr Howison on 20 August 2020 assessed 4.5% of the loss to be induced by occupation and Dr Payten on 1 November 2021 assessed 4% as occupationally induced. The applicant’s evidence is that he has been troubled by tinnitus and it has been held in Bluescope Steel[3] that the calculation of age-related hearing loss in terms of the involvement of presbycusis is relevant only to the calculation of hearing loss under the general tables, not necessarily evidence of age-related loss for the purposes of hearing aids.
[3] Bluescope Steel (AIS) Pty Limited v Sekulovski [2018] NSWWCCPD 48 (Wood DP).
The applicant’s evidence is that whilst employed by the respondent he often had to raise his voice in conversation in order to be heard because of the level of background noise.[4] He gives evidence that in employment he noticed difficulty hearing, and often ringing in his ears and he had to continually ask people to repeat themselves. The applicant’s evidence is that as early as 2006 he was having problems with speech discrimination and ringing in his ears and this is well before the onset of changes related to age.
[4] Application at page 36 at [12].
In June 2020 Dr Macarthur obtained a history of hearing loss commencing in 2000. All the applicant has to show is that his occupational exposure made a material contribution to the need for hearing aids in the sense that his condition was made worse by that exposure.
It was recognised that consideration of frequencies below 2000 are not to automatically be excluded because this depends on the facts of each case and the proposition that over a long period of time industrial deafness can creep into lower frequencies. Dr Howison makes a bold assertion on this point whereas Dr Macarthur finds some of those lower frequencies consistent with noise induced industrial deafness. Dr Howison simply does not explain why noise exposure has not crept into the lower frequencies, particularly having regard to the fact that the applicant was exposed to loud noise in his employment for about 41 years.
Dr Payten’s evidence cannot be accepted on the issue of tinnitus because he confirms the applicant experienced tinnitus for between 20 and 30 years and yet using the Guides asserted that tinnitus could be employed as a calculation if it impacts on the applicant’s ability to perform activities of daily living. Dr Payten’s assessment of tinnitus is inconsistent with the direct evidence from the applicant concerning the subjective difficulties he was experiencing.
The respondent’s submissions
The respondent correctly identified that determination of material contribution is not simply a mathematical exercise. Two of the three doctors have expressed opinion that hearing aids are not reasonably necessary as a result of the applicant’s work. On the facts, the applicant between 1986 and 2006 performed only 5% of his work in the workshop because 95% of his work during this period was in an office environment.
This means that Dr Macarthur’s opinion concerning exposure up to 14 July 2006 represents an incorrect history. Dr Howison on the other hand notes the history of the applicant’s work in a mechanical workshop between 1973 and 1986 and Dr Payten took a similar history. There is therefore insufficient medical evidence to support the proposition that the applicant’s work constitutes a material contribution to his need for hearing aids.
Applicant’s submission in reply
The test is employment, not any particular period of employment as materially contributing to the need for hearing aids. The respondent concedes that the applicant has industrial deafness, so the history of the level or duration of exposure is largely irrelevant. The legislation fixes the last day of employment as the deemed date of this injury.
In Mathews[5] Senior Arbitrator Snell was prepared to accept occupational exposure of 1.7% was a material contribution. Several other cases such as Bates,[6] Murphy,[7] Diab[8] and Bluescope Steel[9] determine the issue in that what is relevant is the applicant’s history and the evidence of exposure. Both Dr Howison and Dr Payten apply the scientific test in contrast to Dr Macarthur.
[5] Matthews v SRA of New South Wales [2015] NSWWCC 243 per Senior Arbitrator Snell (Matthews).
[6] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Bates).
[7] Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 per Roche DP (Murphy).
[8] Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab).
[9] Bluescope Steel (AIS) Pty Limited v Sekulovski [2018] NSWWCCPD 48 (Wood DP) (Bluescope).
DISCUSSION AND REASONS
In Rose[10] Burke CCJ included the following comments:
“4. It is reasonably necessary that such treatment be afforded to a worker if this Court concludes, exercising prudence, sound judgment and good sense, that is so. That involves the Court deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker’.
‘5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
[10] Rose v Health Commission (NSW) [1986] NSWCC 2 (Rose)
Rose was cited with approval by Deputy President Roche in Diab[11] in considering whether treatment was reasonably necessary. The first issue in these proceedings, however, is whether the need for hearing aids was caused or materially contributed to by the applicant’s work exposure. In Matthews[12] Senior Arbitrator Snell although noting a low binaural hearing loss expressed the view that following 40 years of noise exposure there might well be damage beyond any numerical assessment of hearing loss to justify the provision of hearing aids. Although Dr Macarthur obtained an incorrect history concerning the extent of the applicant’s exposure, there is nonetheless 21 years of exposure to workshop noise and then a further 20 years where the applicant did some workshop work for about 5% of the time. Consistent with Bluescope Steel[13] in the current matter the evidence of the applicant concerning what he noticed at work, together with the objective evidence of the duration of the exposure, means in my view that the work-related component of the applicant’s hearing loss materially contributed to the need for hearing aids. Borrowing the words from the decision of Deputy President Roche in Murphy,[14] the applicant:
“…only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ of the injury (see Taxis Combined Services (Victoria) Pty Ltd v Shokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for (the hearing aids). (see the discussion of the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[11] Diab.
[12] Matthews.
[13] Bluescope.
[14] Murphy.
It is arguable, as the respondent has submitted, that the main reason that the applicant needs hearing aids is, on some of the evidence, the non-work-related condition. However, the applicant’s evidence is consistent with tinnitus, a material period of exposure to noise at work and he has industrial deafness in both ears. Although not to be addressed by mere mathematical calculation, it is clear from the figures submitted by the applicant as well as his subjective difficulties and the timing of the history of his problems (as early as 2000) that the work related noise exposure coupled with tinnitus gave rise to the need for the provision of hearing aids and that they were reasonably necessary as result of the injury sustained by the applicant during the course of his employment with the respondent on 14 July 2006 (deemed).
Accordingly, the respondent is liable to pay for the costs of the applicant’s hearing aids pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
FINDINGS
The applicant sustained injury in the nature of bilateral sensorineural hearing loss arising out of or in the course of his employment with the respondent on 14 July 2006 (deemed).
The respondent was the last employer who employed the applicant in employment to the nature of which the injury was due for the purposes of section 17(1)(a)(i) of the 1987 Act.
The provision of hearing aids is reasonably necessary and results from the applicant’s injury.
The respondent is liable to pay for the cost of hearing aids.
ORDERS
The respondent is to pay the applicant for hearing aids as claimed on production of accounts and/ or receipts pursuant to section 60 of the 1987 Act.
0
6
0