D’AMBRA And TELSTRA CORPORATION LIMITED
[2003] AATA 522
•4 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 522
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/897
GENERAL ADMINISTRATIVE DIVISION
Re: CLAUDE D’AMBRA
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 4 June 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
COMPENSATION - hearing loss ‑ whole person impairment - whether greater than ten per cent increase since earlier award of compensation
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988 ss 24, 24(7A), 25(4), 28, 124(3),
Comcare v Tomo Bozicevic & Ors, Federal Court, 23 April 1997, 288/1997
Comcare v Mihaljovic [2000] FCA 285
REASONS FOR DECISION
4 June 2003 G.D. Friedman, Member
1. This is an application by Claude D’Ambra (the applicant) for review of a decision of a delegate of Telstra Corporation Limited (the respondent) dated 26 June 2002. The delegate affirmed a determination of the respondent dated 12 April 2002 to refuse the applicant’s claim for further compensation for hearing loss.
2. At the hearing of this matter on 21 May 2003 the applicant represented himself, assisted by a friend, Mr H. Bokelund, and Mr M. Croyle of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T46), together with three exhibits (Exhibits R1 to R3) tendered by the respondent.
BACKGROUND
4. The applicant was born on 18 February 1957. In 1974 he was employed by the respondent as a lines serviceman until he was retrenched at the end of 1998, after which he worked for the respondent as a contractor until 20 June 2001. On 8 October 1987 the applicant was awarded compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) in respect of a 25.8% loss of hearing attributed to noise exposure sustained while he was the respondent's employee.
5. In 1995 and 2002 the applicant made further claims for additional hearing loss, and both were rejected by the respondent. On 29 January 2002 the applicant lodged a claim for permanent injury/impairment in respect of hearing loss, and he underwent a number of assessments. On 12 April 2002 the respondent made a determination that the applicant was not entitled to further compensation under the Safety, Rehabilitation and Compensation Act 1988 because he had not suffered a further deterioration in his hearing due to noise exposure at work, sufficient to achieve an increase of at least 10 per cent whole person impairment, since the award of compensation in 1987. On 26 June 2002 the respondent affirmed the determination.
6. On 26 August 2002 applicant lodged an application with the Tribunal for review of the decision.
EVIDENCE
7. In oral evidence the applicant said that he had played the electric guitar in a band from 1979 to 1982, and had continued playing the guitar until 1987, when family commitments forced him to cease. He stated that from 1987 until the late 1990s he was required to use heavy and noisy machinery such as jackhammers and borers on a regular basis in his work with the respondent, and that his hearing had deteriorated further as a consequence.
8. Under cross-examination the applicant disputed the accuracy of a written comment by his general practitioner on 1 December 1995 (T25), that the applicant did not remember any specific noise exposure since then (his 1987 award of compensation). He also disagreed that the contents of a letter dated 6 December 1995, written by him to an officer of the respondent, in which he said: …I cannot think of any noise exposure that I’ve been in contact with was a reference to all noise exposure. He said that he was referring to outside noise exposure only.
9. The applicant agreed that the respondent had taken steps to protect staff from the effects of excessive noise through measures such as the wearing of ear protection, although he emphasised that these were not always implemented in the workplace at all times, and he did not recognise the potential harm to his hearing.
10. In a written report dated 12 August 2002 (Exhibit R1) Mr M. Gordon, ear, nose and throat, head and neck surgeon, stated:
…Review of your audiograms from 19/5/87, 20/10/99 and 26/3/02 reveals some mild deterioration in this period but audiometry today 12/8/02 shows some significant low frequency deterioration with regards to your hearing compared to previous audiometry…The cause of further progression of your hearing loss is unclear. It may well be due to further noise exposure.
11. In a further written report dated 6 December 2002 (Exhibit R2) Mr Gordon stated that, from audiometry dated 12 August 2002, the applicant‘s overall hearing loss was 63.1%, of which 30.7% could be attributed to noise-induced hearing loss, using a revised method of calculation from 30 November 1988. He said that the cause of the remaining 32.4% hearing loss was most likely degenerative.
12. In a written report dated 12 March 2002 (T37) Mr D. McMahon, ear, nose and throat surgeon, stated that on examination he could find no abnormalities in the applicant’s ears. In a second written report dated 28 March 2002 (T38) Mr McMahon stated that an Evoked Response Audiogram (ERA) had been conducted on the applicant. Mr McMahon concluded that the applicant had a hearing loss of 49.1%, of which:
…18.2% the loss from 500 to 1500 Hz is not compensible. The remaining loss 30.9% I unfortunately cannot exclude noise being a significant factor therefore I have to conclude it is permanent and compensible giving a Whole Person Impairment of 15.45%.
13. In a further written report dated 27 November 2002 (Exhibit R3) Mr McMahon stated that between October 1999 and October 2001 there had been a deterioration in the applicant’s hearing across all frequencies, …indicating that what has occurred is a natural degeneration and not related to his work. Mr McMahon accepted that the audiogram performed by Dr D. Buchanan, audiologist, on 20 October 1999 (T31), which indicated a hearing loss of 35.0%, was more accurate than his own assessment of 30.9%, because of added pathology that Dr Buchanan had taken into account. Mr McMahon concluded that the deterioration from 25.8% in 1987 to 35.0% represented a further deterioration while the applicant was working for the respondent.
14. In oral evidence Mr McMahon stated that he requested an ERA because the test conducted on 12 March 2002 produced unreliable results, possibly due to exaggerated responses by the applicant. He explained that the ERA relies on a computer-based measurement of brain activity, rather than responses from the subject of the test. Mr McMahon agreed that Dr Gordon had applied the relevant formula correctly, and that Dr Gordon’s assessment of 30.7% was accurate.
15. Under cross-examination Mr McMahon noted that the ERA was more objective than his own assessment, and that the formula now used in Victoria takes all frequencies into account.
CONSIDERATION OF THE ISSUES
16. Section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
Compensation for injuries resulting in permanent impairment
24.(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.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
Interim payment of compensation
25.(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
Section 124(3) of the (the Act) provides:
Division 2 - Transitional provisions
Application of Act to pre-existing injuries
124(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act;
…
17. The applicant submitted that permanent hearing loss could only be assessed when his exposure to noise concluded, and this was in June 2001 when his contract with the respondent had expired. He said that his hearing loss had worsened from 25.8% in the 1987 award of compensation to 35.8% after June 2001. In respect of whole person impairment the applicant submitted that his total hearing loss calculated at 49.1% should be converted to a whole person impairment value: 49.1% minus 25.8%, then divided by 2, giving a whole person impairment of 11.65% which is more than the level of 10% required for an award of compensation under s25(4) of the Act. He stated that the base figure of 49.1% for hearing loss should be used because any other calculations regarding noise etc. are not provided for in the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).
18. Mr Bokelund submitted that, in any event, the applicant only needed to demonstrate a level of impairment of 5% because of s24(7A) of the Act.. He said that throughout the proceedings the applicant had been honest. He questioned Mr McMahon’s credibility because of changes in the calculations of hearing loss and the subjective nature of some of the evidence. Mr Bokelund also referred to the use by some government agencies of legislative measures to avoid their financial obligations to employees.
19. Mr Croyle submitted that s24(7A) of the Act was not applicable because this section of the Act came into operation on 1 October 2001, and that any deterioration in the applicant’s hearing since he ceased working as an employee in late 1998 and commenced working as a contractor was not compensable under the Act. Mr Croyle said that in any event there was no objective evidence that the applicant was exposed to additional noise that might have affected his hearing after he ceased working as an employee of the respondent.
20. Mr Croyle acknowledged that there was some variation in the level of hearing loss as calculated by various medical practitioners. He said that the evidence from Mr McMahon was given in a frank manner, which recognised the difficulty in drawing accurate conclusions from calculations of hearing loss. Mr Croyle noted that under s124(3) of the Act the applicant received an award of compensation under the 1971 Act. He was not entitled to further compensation for permanent impairment under s24 of the Act because the injury leading to the compensation occurred before the commencement date of the Act (Comcare v Tomo Bozicevic & Ors, Federal Court, 23 April 1997, 288/1997). Mr Croyle stated that the only entitlement for compensation for permanent impairment was under s25(4) of the Act, which required a 10% increase in the degree of impairment.
21. Mr Croyle submitted that under s28 of the Act the assessment of permanent impairment was calculated correctly using the Guide. He stated that to derive the increase in permanent impairment from hearing loss since 1987, the 1987 figure for hearing loss (25.8%) must be deducted from work-related hearing loss attributable at the date of the claim. He submitted that deduction of even the most favourable calculation (35.0% by Dr Buchanan) would result in an increase of 9.2%, which, when divided by 2 under the Guide results in an increase in permanent impairment of 4.6%, which is less than the required figure of 10% after a final assessment by Comcare (Comcare v Mihaljovic [2000] FCA 285).
22. In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
23. The Tribunal accepts the submission by Mr Croyle that the applicant ceased to be an employee at the end of 1998, so that any injury by way of additional hearing loss suffered by the applicant after commencing work as a contractor is not compensable under the Act.
24. In respect of compensation for permanent impairment, the Tribunal does not accept the applicant’s submission that the figure of 49.1% for hearing loss should be used in the calculation. The Tribunal agrees with Mr Croyle that this figure represents total hearing loss and not the work-related component of hearing loss. The Tribunal accepts Mr McMahon as a credible witness who gave proper consideration to the relevant factors and the subjective nature of the measurement of hearing loss. The Tribunal accepts Mr McMahon’s evidence supporting the accuracy of Dr Buchanan’s calculation of work-related hearing loss of 35.0%, rather than his own calculation of 30.7%. The Tribunal agrees with Mr Croyle that the calculation of the increase in the applicant’s permanent impairment from hearing loss using the Guide gives a figure of 4.6%, which is less than 10% as required under s24 and s25 of the Act.
25. Having regard to s24(7) and s25(4) of the Act in force at the time of the applicant’s cessation of employment in 1998, the Tribunal finds that the applicant is not entitled to compensation in respect of permanent impairment resulting from any further hearing loss since 1987.
DECISION
26. The Tribunal affirms the decision under review.
I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 21 May 2003
Date of decision: 4 June 2003Advocate for applicant: Mr H. Bokelund
Counsel for respondent: Mr M. Croyle
Solicitor for respondent: Australian Government Solicitor
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