Daw and Comcare (Compensation) - [2022] AATA 543

Daw and Comcare (Compensation) [2022] AATA 543 (25 March 2022)
Division:GENERAL DIVISION
File Number(s): 2019/0197
Re:Steven Daw
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:25 March 2022
Place:Brisbane

I affirm the decision under review.
...........................[SGD].....................................
Deputy President Dr P McDermott RFD
Catchwords
Comcare – Vestibular migraine – migraine – tinnitus – vertigo – dizziness – oscillopsia – Australian Public Service employee – non-economic loss – whole person impairment – lengthy claims history – where decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Broadhurst v Comcare [2010] FCA 1034
Canute v Comcare (2006) 205 CLR 535
Comcare v Lilley [2013] FCAFC 121
Comcare v Lofts (2013) 217 FCR 220
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
SECONDARY MATERIALS
Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
25 March 2022
INTRODUCTION

This application by Mr Daw (“the applicant”) made on 9 January 2019 concerns the review by this Tribunal of a reconsideration decision of Comcare (“the respondent”) dated 4 January 2019.[1] This decision affirmed an earlier determination to deny the applicant’s claim for permanent impairment and non-economic loss under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in relation to accepted conditions of “adjustment reaction with mixed emotional features” and “aggravation of vestibular migraine”. The applicant has claimed permanent impairments of “hearing loss, moderately severe tinnitus and cognitive dysfunction” which is claimed to arise from his “aggravation of vestibular migraine” injury.
[1] Exhibit A, T Documents, T126, page 726.
BACKGROUND
From 2003 to 2013 the applicant was employed by the Australian Public Service (“APS”).[2] He worked with the APS in three different agencies or departments until he went on leave in September 2013 and ceased paid employment in August 2014.[3] On 25 November 2013, the applicant signed his claim for workers’ compensation for a workplace injury arising from his employment with the Australian Antarctic Division (“AAD”).[4] His claim identified an injury of “work related stress and low mood as a result of multiple stresses at work”.[5] In his claim form, the applicant remarked that his neurological function has been most severely affected and that he first suffered or noticed the injury on 20 September 2013. In his claim form the applicant identified the cause of injury as “excessive hours and taskload/pressure over a prolonged period >4 years. multiple stressors over a sustained time.”[6]
[2]     Exhibit B, Hearing Book, R4, Respondent’s Statement of Facts, Issues and Contentions page 920.
[3]     Exhibit B, Hearing Book, R4, Respondent’s Statement of Facts, Issues and Contentions page 920.
[4]     Exhibit A, T Documents, T6, pages 31, 33 and 37.
[5]     Exhibit A, T Documents, T6, page 32.
[6]     Exhibit A, T Documents, T6, page 34.
Under a determination dated 14 February 2014, the respondent accepted liability for the applicant’s injuries outlined in the claim, this was expressed in the determination as an “adjustment reaction with mixed emotional features”.[7] This determination compensated the applicant for his time off work and his medical expenses up to and including
[7] Exhibit A, T Documents, T25 page 134.
15 November 2013. It further determined that the respondent had no liability under section 16 of the Act to pay further compensation from that date.
In his email dated 27 February 2014, the applicant requested reconsideration of the decision as he contended that he should be compensated for time off later than the 15 November 2013 date mentioned in the original determination.[8] This email further mentioned that he had been diagnosed by Dr Chen with “vestibular migraine with a component of anxiety and possibly secondary phobic postural dizziness.”[9]
[8] Exhibit A, T Documents, T26 page 146.
[9] Exhibit A, T Documents, T26 page 147.
Under a determination decision of 27 March 2014,[10] the respondent determined that the applicant was not entitled to compensation under s 14 of the Act in respect of his claim for aggravation of vestibular migraine. It was also determined that the applicant was not entitled to compensation in respect of medical treatments and incapacity under ss 16 and 19 of the Act arising from his vestibular migraine or aggravation of his condition. By his letter dated 1 June 2014, the applicant sought reconsideration of that determination.[11] The applicant was granted an extension of time to make his request for reconsideration.
[10] Exhibit A, T Documents, T31 pages 156-159.
[11] Exhibit A, T Documents, T39.7 page 177.
On 30 July 2014, the respondent affirmed the 27 March 2014 determination in a reconsideration decision which denied liability for aggravation of vestibular migraine under s 14 of the Act.[12] The applicant sought review of this decision to the Tribunal on 1 September 2014.[13]
[12] Exhibit A, T Documents, T52 page 275.
[13] Exhibit A, T Documents, T55 page 283.
On 12 January 2015, the respondent also issued a reconsideration decision which affirmed the original determination of 14 February 2014.[14] The delegate found that the applicant’s dizziness and loss of balance could be attributed to the diagnosis of vestibular migraines but this condition could not be attributed to his employment as it did not manifest itself until he was already on leave from his employment in November 2013.[15] On 16 January 2015, the applicant also sought review of this decision by the Tribunal.
[14] Exhibit A, T Documents, T65 page 353.
[15] Exhibit A, T Documents, T65 pages 356-357.
On 27 February 2015, both of the applications of the applicant were determined by a consent decision under s 42C of the Administrative Appeals Tribunal Act 1975 (Cth).[16] In the consent decision of 27 February 2015, the Tribunal varied the reconsideration of
[16] Exhibit A, T Documents, T74 page 403.
[17] NB: Section 19 is a general compensation provision which applies if s 20 does not apply. Section 20 applies if the applicant is incapacitated and in receipt of a superannuation pension.
30 July 2014 to expand the applicant’s claim to include liability for aggravation of vestibular migraine. The Tribunal further decided that the applicant was entitled to compensation under ss 19 or 20[17] of the Act for his incapacity resulting from the aggravation of his migraine condition. This compensation was contingent on him providing relevant reports to the respondent.
On 23 October 2015, the applicant lodged a claim with the respondent for permanent impairment and non-economic loss.[18] In support of his claim, the applicant included a summary of his impairments which he assessed as being 99% whole person impairment.[19] The identified impairments included: vertigo and unsteadiness, headaches, cognitive dysfunction/brain fog, reduced level of hearing, tinnitus, and flashbacks/OCD/stress/anxiety and depression. This document was signed by Dr David Shilton, the general practitioner of the applicant.[20]
[18]    Exhibit A, T Documents, T79 page 411.
[19]    Exhibit A, T Documents, T79 page 414.
[20]    Exhibit A, T Documents, T79 page 424.
On 11 January 2016, the respondent refused the claim for permanent impairment under ss 24 and 27 of the Act.[21] On 12 January 2016, the applicant requested that this decision be reconsidered.[22] On 26 February 2016, the respondent varied its decision, determining that the applicant was entitled to permanent impairment compensation for the aggravation of his vestibular migraines.[23] However, the decision was affirmed with respect to the finding that permanent impairment compensation was not payable on his adjustment disorder. The result was an award of $61,641.54 in lumpsum compensation.
[21]    Exhibit A, T Documents, T85 page 488.
[22]    Exhibit A, T Documents, T86 page 491.
[23]    Exhibit A, T Documents, T90 page 511.
On 29 February 2016, the applicant sought review of this decision.[24] On 14 August 2016, the applicant withdrew his application for review.[25] On 28 July 2016, the applicant wrote to the respondent requesting that his accepted claim be expanded to include “polysymptomatic medical symptoms” alongside the adjustment disorder and aggravation of vestibular migraines.[26] In a letter dated 10 November 2016, the respondent denied this claim.[27] On 8 December 2016, the respondent affirmed the determination of
[24]    Exhibit A, T Documents, T91 page 519.
[25]    Exhibit A, T Documents, T94 page 543.
[26]    Exhibit A, T Documents, T93 page 541.
[27]    Exhibit A, T Documents, T95 page 544.
[28]    Exhibit A, T Documents, T99 page 558.
[29]    Exhibit A, T Documents, T100 page 562.
10 November 2016.[28] On 9 December 2016, the applicant sought review by the Tribunal of this decision.[29]
On 22 February 2017, the applicant also made a further claim for permanent impairment and non‑economic loss compensation.[30] This claim sought compensation for dysfunction of the brain, loss of hearing and severe tinnitus. On 3 April 2017, the respondent determined there was no liability under s 14 of the Act for the claimed conditions and therefore did not proceed to consider if there was a permanent impairment.[31] On 3 April 2017, the applicant sought reconsideration of this determination,[32] and on 2 May 2017, the respondent affirmed this determination.[33] By his application dated 3 May 2017, the applicant sought review by the Tribunal of the respondent’s decision.[34]
[30]    Exhibit A, T Documents, T102 page 576.
[31]    Exhibit A, T Documents, T104 page 593.
[32]    Exhibit A, T Documents, T105 page 596.
[33]    Exhibit A, T Documents, T107 page 599.
[34]    Exhibit A, T Documents, T108 page 611.
The application lodged on 9 December 2016 was numbered 2016/6654, and the application lodged on 3 May 2017 was numbered 2017/2621. Both applications were withdrawn on
[35] Exhibit A, T Documents, T112 page 653.
20 December 2017.[35]
On 27 February 2018, the applicant requested that his approved claim be amended to include the following impairments: migrainous vertigo; unexplained neurological symptoms; and adjustment disorder and other psychiatric diagnoses.[36] On 16 July 2018, the applicant made a further claim for permanent impairment and non-economic loss.[37] This claim identified cognitive dysfunction, moderately severe tinnitus and hearing loss as the permanent impairments.[38] The applicant attached a report of Dr Shilton which ascribed a whole person impairment rating of 19% to these conditions.[39] By a determination dated
28 November 2018, the respondent denied this claim. On 5 December 2018, the applicant sought reconsideration of the respondent’s determination.[40] On 4 January 2019, the respondent affirmed the determination of 28 November 2018.[41] In affirming this determination the respondent stated “… it is noted that under the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1… an impairment rating for tinnitus must be in the presence of a compensable hearing loss condition”.[42] Relevantly, the respondent also remarked:[43]
Whilst some evidence suggests that you have some cognitive difficulties which appear to be attributable to your migraine condition, it is noted that the condition of cognitive dysfunction or brain fog was specifically declined under section 14 of [the Act] in a determination dated 3 April 2016. … I cannot be satisfied that you have any rateable cognitive difficulties due to your migraine condition that would entitle you to any further compensation for PI and NEL under sections 24 and 27 of [the Act].
[36]    Exhibit A, T Documents, T113 page 654.
[37]    Exhibit A, T Documents, T117 page 667.
[38]    Exhibit A, T Documents, T117 page 667.
[39]    Exhibit A, T Documents, T117 page 671.
[40]    Exhibit A, T Documents, T125 page 722.
[41]    Exhibit A, T Documents, T126 page 726.
[42]    Exhibit A, T Documents, T126, page 727.
[43]    Exhibit A, T Documents, T126, page 728.
The reconsideration decision of 4 January 2019 is the “reviewable decision” under ss 63 and 64 of the Act for the purposes of the present application.[44]
[44] See also, Comcare v Lofts (2013) 217 FCR 220, 232 (Mortimer J).
ISSUES
The issues before the Tribunal arise from the reviewable decision; these are:
(a)Whether the applicant suffers one or more of the impairments described in the claim, namely:
(i)hearing loss;
(ii)tinnitus; and
(iii)cognitive dysfunction.
(b)Whether any such impairments are a result of either of the applicant’s accepted injuries, being aggravation of vestibular migraine, and adjustment reaction with mixed emotional features.
(c)Whether any impairments are permanent.
(d)What the percentage of whole person impairment (“WPI”) of any such impairments is.
(e)What amount of compensation (if any) is payable to the applicant for any permanent impairment(s), pursuant to s 24 of the Act.
(f)What the non-economic loss (if any) suffered by the applicant as a result of his injury or the claimed impairments is.
(g)What amount of compensation (if any) is payable to the applicant for his non-economic loss, pursuant to s 27 of the Act.
Addressing the final issues is contingent upon all the previous issues being resolved in the applicant’s favour.
LEGISLATION
Sections 14, 24 and 27 of the Act provide:
14 Compensation for Injuries
(1)Subject to this part, 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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serios and wilful misconduct of the employee but is not intentionally self-inflicted, unless injury results in death, or serious and permanent impairment.
24 Compensation for injuries resulting in permanent incapacity
(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 other than a hearing loss; 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.
(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.
(8)Subsection (7) does not apply to any one or more of the following:
(a)    the impairment constituted by the loss, or the loss of the use, of a finger;
(b)    the impairment constituted by the loss, or the loss of the use, of a toe;
(c)    the impairment constituted by the loss of the sense of taste;
(d)    the impairment constituted by the loss of the sense of smell.
(9)For the purposes of this section, the maximum amount is $80,000.
27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3)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.
The following terms are defined in s 4 of the Act as follows:
Impairment means 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.
Non-economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
Permanent means likely to continue indefinitely.
The respondent has accepted that the applicant suffers from an injury to which compensation was payable. The dispute arises from whether the applicant is entitled to further compensation in respect of permanent impairment and non-economic loss.
MEDICAL REPORTS
I outline the medical reports associated with the applicant’s claim history.
The applicant’s initial claim (“the initial claim”)
On 28 April 2011, Dr Nightingale, consultant physician, produced a report which outlines the applicant’s then recent admission for his sudden loss of weight and experiences of vertigo.[45] Dr Nightingale reported that then the applicant had largely returned to his normal state of health and that a physical examination did not yield any results of concern.
[45] Exhibit A, T Documents, T4 page 27.
Dr Nightingale noted that the applicant had suffered a diving injury and has had memory and perhaps spinal cord problems since the injury, although they have improved with time. Dr Nightingale further related that a definite cause for his recent symptoms is not evident today, although he perhaps did have a viral labyrinthine disorder which has settled.
On 29 April 2011, the applicant underwent a hearing test with Hearing Central. The report indicated that the applicant had a mild to moderate high-frequency hearing loss and recommended that protection be worn when he was exposed to loud noises.[46]
[46] Exhibit A, T Documents, T5 page 28.
On 14 November 2013, the applicant presented to the Royal Hobart Hospital complaining of vertigo that had been then continuing for a week.[47] The preliminary tests undertaken by the hospital did not return any abnormal results. On 14 November 2013, Dr Huckerby drafted an unsigned report of the applicant’s CT Scan results which concluded “conclusion: no acute intracranial abnormality”.[48]
[47] Exhibit A, T Documents, T8 page 43.
[48] Exhibit A, T Documents, T8 page 48.

From November 2013 until July 2014, the applicant lodged eight medical certificates in relation to his Tasmanian WorkCover claim. The reports span the dates of
[49] Exhibit A, T Documents, T3 pages 11-25.
[50] Exhibit A, T Documents, T3 page 11.
25 November 2013 to 30 July 2014.[49] The applicant lodged the claim because he was suffering from “poor concentration and low motivation, ‘short fuse’, headache, low mood” due to “work related stress…large workload, lots of overtime, bullying by previous boss, inadequate support’.[50] In the initial medical certificate dated 25 November 2013, Dr Anna Ritchie, medical practitioner, opined that the applicant’s symptoms would have commenced on 30 September 2013 and resolved by 18 November 2013 at which point he would be fit to return to his normal duties.
By February 2014, the WorkCover claim refers to the applicant’s impairment having progressed to a diagnosis of vestibular migraine and that he was experiencing symptoms that included brain fog and tinnitus.[51] The reports indicate that the applicant’s incapacity to work was progressively reassessed to March 2014, to April 2014, to November 2014, before being retracted to June 2014 and then extended again to July 2014.
[51] Exhibit A, T Documents, T3 page 13.
When the last WorkCover report was issued on 30 July 2014, the applicant was then determined to be fit to return to work. His diagnosis was confirmed as vestibular migraine and related stress with low mood. His symptoms were expressed in the following terms: “episodic vertigo, “brain fog”, unsteady on feet, clumsiness, fatigue, tingling feet, tinnitus, hearing change, frequent headaches, Visual upset, problems with sense of smell, palpitations and chest pains, hypertension, change in bowel habit”.[52] In the medical certificate dated 30 July 2014, Dr O’Neill, medical practitioner, certified that the applicant would be unfit for any work from 18 November 2013 until 28 July 2014.[53]
[52] Exhibit A, T Documents, T3 page 25.
[53] Exhibit A, T Documents, T3 pages 25-26.
After the applicant filed his claim on 26 November 2013,[54] he was referred Dr Philip Moore. Dr Moore in his letter dated 29 November 2013 reported that he had examined the applicant and, whilst he could only comfortably confirm the applicant’s symptoms were of “migrainous origin”, he could not definitively explain the majority of the applicant’s ailments.[55]
[54] Exhibit A, T Documents, T6 page 37.
[55] Exhibit A, T Documents, T7 page 41.
Dr Moore also referred the applicant for an MRI and informed the applicant that his tinnitus was likely hereditary and that it would worsen over time, as his mother’s did. Dr Moore explained to the applicant that any resolution of his tinnitus would likely take the form of learning to live with it rather than actually resolving it. Dr Moore provided his further report on 18 December 2013[56] which reported that after having received an MRI, the applicant’s symptoms could be more safely attributed to a neurological origin. Dr Moore recommended the applicant be referred to a neurologist for further review. The report was accompanied by a report of Dr Shaddock dated 17 December 2013 which considered the results of the various tests conducted on the applicant, none of which produced concerning results.[57] The only comment of note is that the applicant had eight supratentorial compartment white matter foci of T2 hypersensitivity.
[56] Exhibit A, T Documents, T11 page 54.
[57] Exhibit A, T Documents, T10 page 53.
On 16 January 2014,[58] the applicant produced, at the respondent’s request,[59] a series of statements to demonstrate why he believed his injury was work caused. The statement details an interaction that the applicant had with his supervisor in February 2010.[60] At this meeting he states that his then supervisor (who the applicant also refers to as his manager), levelled surprising allegations of poor workplace performance at him at what was not supposed to be a workplace performance meeting. The applicant remarked that he was taken aback by the comments as they did not reflect his usual workplace appraisals and he believes that these criticisms were in fact prompted by an inappropriate relationship between his then supervisor and a particular contractor.[61]
[58]    Exhibit A, T Documents, T20 pages 85-110.
[59]    Exhibit A, T Documents, T14 page 60.
[60]    Exhibit A, T Documents, T20.2 page 90.
[61]    Exhibit A, T Documents, T20.2 page 91.
The applicant alleges that after filing a complaint about his then supervisor, he was subjected to bullying by them and had to manage their attempts to undermine him and inhibit the functioning of the team he managed. The applicant states that his filing of a complaint led to an internal investigation which resulted in his then supervisor being removed as his supervisor. However, the applicant expresses a dissatisfaction with the way that his complaint was managed. After this point the applicant noted a good relationship with his new manager, however, he was transferred to another team which required excessive amounts of work and overtime. He recounts working from 7:30AM to 6:00PM daily and then working a further 3 hours each night at home and between 3 and 6 hours on weekends.[62] He suggests that this was related to “short bursts of strong ringing in the ears accompanied by dizziness (enough requiring me to grab something to steady myself) with spots of light moving in front of my vision. These events would only last for perhaps a half minute then pass”.[63] The statement traverses a general worsening of symptoms in what is described as a very highly demanding and intensive workplace. This culminated in the applicant deciding to seek medical attention after he failed to attend a work dinner due to severe dizziness.[64]
[62]    Exhibit A, T Documents, T20.2 page 94.
[63]    Exhibit A, T Documents, T20.2 page 92.
[64]    Exhibit A, T Documents, T20.2 page 96.
In his statutory declaration dated 9 January 2014, the applicant estimated that he completed over 1100 hours of overtime per annum in the period 2008 to 2014.[65] The applicant finished his statement with a comment that he was looking forward to returning to work and did enjoy his employment with the AAD. However, he did not actually return to work.
[65] Exhibit A, T Documents, T20.3 page 98.
A statement dated 15 January 2014 from Commander John Richard Mortimer was included in the applicant’s material to Comcare.[66] Commander Mortimer referred to the applicant’s extreme and protracted workload to compensate for the significant deficiencies in his team and what he described as inconsistent, incompetent management at the AAD.
[66] Exhibit A, T Documents, T20.4 page 100.
Captain Glenn Nattrass, in his statement dated 10 January 2014,[67] was complimentary of the applicant’s work ethic and demonstrated commitment to ensuring his job was done properly and the team he oversaw delivered on its tasks. He stated “my personal view is that [the applicant’s] current medical condition has been exacerbated by the conditions of his employment over the past three years. Whether causal or not, there is little doubt in my mind that [the applicant] has become physically run down by the pace and extent of his work…’.[68]
[67] Exhibit A, T Documents, T20.5 page 103.
[68] Exhibit A, T Documents, T20.5 page 103.
On 17 January 2014, Dr Ritchie reported that the applicant had been unable to return to work at the expected time due to the onset of another illness.[69] The report summarises that the applicant was suffering from work related stress issues as well as home issues which include financial stress related to issues with a builder and sickness of a child. Dr Ritchie considered that the applicant does not have a underlying or pre-existing mental health condition that she was aware of. She further reported that the applicant was not assessed against the DSM IV at the time of consultation. In a follow up note dated
[69] Exhibit A, T Documents, T21 page 111.
[70] Exhibit A, T Documents, T21.2 page 114.
30 September 2013, Dr Ritchie remarked that the applicant’s state was deteriorating and that a month of leave would be more appropriate. In September 2013, Dr Ritchie administered a DASS 21 test to the applicant who scored moderately high in depression, moderately high in anxiety and severely high in stress levels.[70] The annexure to the DASS Test explains that the test can be inherently arbitrary and ought not to be used for diagnosis purposes.
A report from Dr Chen dated 28 January 2014 records how the applicant’s physical state had further degenerated as he was now reliant on a cane.[71] The purpose of the report was to attempt to distinguish the applicant’s then current neurological symptoms with his previous symptomatology as the result of a previous 1992 diving decompression injury.
[71] Exhibit A, T Documents, T22 page 116.
Dr Chen could not find a physical cause of his worsening mental symptoms which now included brain fog, tinnitus and migraines. However, he posited that the symptoms could be migrainous in origin.
On 6 February 2014, Dr Anthony Sheehan, psychiatrist, provided a detailed report on the applicant’s mental state.[72] When Dr Sheehan interviewed the applicant, the applicant attributed the bulk of his symptomatology to his workload where he stated, “there were ‘a lot of issues that had to be resolved’. He said that there was a ‘high workload’ and indicated that he had put in 1100 hours in overtime over the last four years”.[73] I should mention that this description of the applicant’s overtime differs from that in his statutory declaration which recorded 1100 hours of overtime per year for four continuous years.[74] However, I accept that it might be the case that Dr Sheehan may not have understood that the amount of overtime mentioned by the applicant was a yearly total.
[72]    Exhibit A, T Documents, T23 page 118.
[73]    Exhibit A, T Documents, T23 page 119.
[74]    Exhibit A, T Documents, T20.3 page 98.
When Dr Sheehan was drafting his report, the applicant was seeking pharmaceutical treatment for vestibular migraines in accordance with the directions of Dr Chen. During the interview, Dr Sheehan recorded that the applicant referred to typed documents when explaining his symptoms and backstory and that generally his reactions were appropriate with relevant insight and mild irritability.[75] Dr Sheehan went on to opine “the main factors preventing him returning to work relate to his physical condition and he reported some continuing moderate anxiety in regards to returning to the same level of workload… [the applicant] has probably developed a Chronic Adjustment Disorder with Depressed and Anxious Mood.”[76] He further affirmed this conclusion in response to the question “what is the specific diagnosis of the condition from which [the applicant] suffers?”
[75] Exhibit A, T Documents, T21 page 121.
[76] Exhibit A, T Documents, T21 page 122.
In response to the question “is [the applicant’s] current medical condition an aggravation, acceleration or recurrence of a pre-existing or underlying condition?” Dr Sheehan reported that the applicant had no reported underlying conditions of relevance. When asked to attribute causation to the applicant’s conditions, Dr Sheehan replied “[the applicant] reported multiple employment factors relating to overwork, disagreements with his managers, alleged bullying, lack of support over a four year period. It is not possible to detail the level of contribution as they appear to be cumulative. [The applicant] reported a gradual onset of symptoms and it appears that he became acutely unwell in the period August 2013 to September 2013”.[77] Dr Sheehan concluded by remarking there were physical symptoms that he was unable to comment on as they were outside his area of speciality. Dr Sheehan suggested the applicant be referred to a psychologist for cognitive behavioural therapy as a course of treatment.
[77] Exhibit A, T Documents, T23 page 124.
On 14 February 2014, liability for the applicant’s claim for compensation under s 14 of the Act was accepted.[78] He was compensated for medical treatment received and time off work up until 15 November 2013 for the adjustment disorder that was accepted. From that date forward, the delegate was of the view the respondent was not liable to compensate the applicant further. By this stage, the applicant had not been at work since September 2013.
[78] Exhibit A, T Documents, T25 page 134.
Ms Rachel Andrew, physiotherapist,[79] in a report dated 4 March 2014, remarked that the applicant suffered from “probable oscillopsia combined with some central sensitization and deconditioning”[80]. In relation to treatment, Ms Andrew stated “I have started [the applicant] with vestibular retraining exercises and plan to continue assessment while progressing to functional reconditioning and balance exercise”.[81]
[79]    Exhibit A, T Documents, T27, page 149.
[80]    Exhibit A, T Documents, T27, page 149.
[81]    Exhibit A, T Documents, T27, page 149.
In a report dated 6 March 2014, following a hearing assessment on the same date, Mr Nick Modrovich opined that:
[The applicant] completed a Tinnitus Reaction Questionnaire and scored 37, resulting in an assessment of moderately severe tinnitus. In view of the mild high frequency hearing loss and bilateral moderately severe tinnitus, [the applicant] would benefit from wearing binaural combination sound generator/hearing aids. [82]
[82] Exhibit B, Hearing Book, A22, page 169.
On 25 March 2014, the applicant undertook a further DASS 21 test which found that his psychological disposition had changed to severe depression, mild anxiety and moderate stress (a change from the moderate depression, moderate anxiety and severely stress levels he recorded in 2013).[83]
[83] Exhibit A, T Documents, T27 page 154.
On 12 May 2014, at the request of the applicant’s lawyers, Dr Ritchie provided a further report in relation to the applicant’s claim that the period of disability ought to be longer than that provided for in the s 14 determination of 14 February 2014.[84] The report concludes that the applicant’s symptoms were largely inconclusive in November 2013 and that at this stage he was either undergoing further investigation or being referred for further treatment.
[84] Exhibit A, T Documents, T34 page 169.
On 19 May 2014, Dr Ritchie provided a supplementary report in which he remarked:
If [the applicant’s] symptoms continue as they are then I would agree that he is very unlikely to return to his previous role. As I am not a specialist in neurology… I find it hard to comment with confidence on the likelihood of his full recovery …
Any future employment may need to be flexible in terms of where he works (as he is unable to drive due to his symptoms) and what hours he works or what deadlines he has …[85]
[85] Exhibit A, T Documents, T37 page 173.
On 30 May 2014, Dr Ritchie reported that the applicant was unfit to return to work in November 2013.[86]
[86] Exhibit A, T Documents, T38 page 174.
On 2 June 2014, Dr Elspeth Hutton reported: “In summary, [the applicant] has vestibular migraine, with attendant disequilibrium, vertigo, fatigue and cognitive clouding. There is a personal and family history of migraine. It is likely that the current period of increased headache activity is related to his highly stressful job and caffeine excess”.[87] Dr Hutton prescribed the applicant a series of medications to assist with these symptoms and arranged for him to attend her office again in a few months’ time.
[87] Exhibit A, T Documents, T40 page 181.
On 28 July 2014, Dr Hutton provided a supplementary report in which she reiterated her position.[88] Dr Hutton reported: “[The applicant] suffers from migraine headaches…In [the applicant’s] case, his high stress related to his work is certainly a contributing factor to why his headaches are more active at this time. I do not think that his previous decompression sickness is related…”[89] She did note that his work stressors could form only one of multiple social, historical and financial stressors in his life. This statement was made in the context of acknowledging the applicant’s mother and son both suffer from headaches and dizziness similar to him.
[88] Exhibit A, T Documents, T50 page 270.
[89] Exhibit A, T Documents, T50 page 271.
On 30 June 2014, Dr Donald Curran, consultant physician, provided a report after assessing the applicant on 16 June 2014.[90] Dr Curran opined that “… [the applicant’s] multiple work related factors… may have acted as a trigger to release his severe childhood trauma which he had repressed until recent times”.[91] Dr Curran refers to the trauma referred to by the applicant in “one sentence in a 120 page document”.[92] Dr Curran recommended that the applicant should not conceal information from his doctors concerning his supposed childhood trauma. However, he did not elaborate on what this trauma was or how he suspected it affected the applicant’s symptoms.
[90]    Exhibit A, T Documents, T43 page 186.
[91]    Exhibit A, T Documents, T43 page 188.
[92]    Exhibit A, T Documents, T43 page 187.
On 4 July 2014, Ms Bethany Smith, clinical psychologist, provided a letter following an assessment of the applicant on 23 May 2014 and four psychological sessions which occurred subsequent to the initial assessment. Ms Smith in her letter remarked:
It is my clinical opinion from my assessment and sessions with [the applicant] that his high stress work place is likely to have triggered a physiological stress reaction (vestibular migraine) and exacerbated a pre-existing vulnerability to stress in the form of childhood abuse.[93]
[93] Exhibit A, T Documents, T44 page 191.
On 22 July 2014, consultant psychiatrist, Dr Scott Chambers produced a report on the applicant’s mental symptoms.[94] Dr Chambers examined the applicant in his office and reviewed his medical file. In his concluding remarks, Dr Chambers opined that the majority of the applicant’s mental symptoms were still focused on his workplace anxieties, despite not having worked in several months,[95] and they prevented him from being able to return to work. Dr Chambers did not comment on whether the applicant’s mental symptomatology played a role in the development of his vestibular migraines. Dr Chambers recommended that the applicant be put on a course of antidepressant medications and that until such a course was developed, he did not meet the criteria for permanent incapacity.[96] Additionally, Dr Chambers remarked “there is a reasonable possibility that his psychiatric condition will improve in the future”.[97]
[94]    Exhibit A, T Documents, T49 page 261.
[95]    Exhibit A, T Documents, T49 page 267.
[96]    Exhibit A, T Documents, T49 page 269.
[97]    Exhibit A, T Documents, T49 page 269
On 30 July 2014, Dr Luke Chen in his letter considered the relationship between the applicant’s symptoms and an earlier diving accident which was unrelated to his employment with AAD.[98] Dr Chen stated, “I am not certain that the symptoms [the applicant] is experiencing are directly related to decompression sickness”. Dr Chen reiterated his earlier opinion that migraines would largely explain the applicant’s symptoms.
[98] Exhibit A, T Documents, T51 page 274.
Following the applicant’s initial application to the Tribunal for review in 2014 after the respondent affirmed the initial claim refusal, he provided a further medical report from Sara Robinson, psychologist. On 16 September 2014 Ms Robinson wrote a letter which stated that after nine sessions of therapy, the applicant had not improved with respect to the anxiety and depression he was experiencing. However, the applicant maintained that he was benefitting from therapy nonetheless.[99]
[99] Exhibit A, T Documents, T56 page 285.
On 8 December 2014, the applicant attended a further medical appointment, at the request of the respondent, which resulted in a further report from Dr Rosen, dated 23 December 2014.[100] Dr Rosen explained his relationship with the applicant and his extensive history supervising his symptomology, which had been progressing for seven years. Dr Rosen recounted how the applicant’s symptoms were originally mild and treated with two weeks of leave. However, upon his anticipated return to work the applicant’s symptoms returned and significantly worsened.[101] Over time, the symptoms of disequilibrium, tinnitus and vertigo worsened to the stage where the applicant required a walking stick and the symptoms of migraine, fatigue, memory lapse and brain fog made his life increasingly difficult.[102]
[100] Exhibit A, T Documents, T61 page 306.
[101] Exhibit A, T Documents, T61 page 317.
[102] Exhibit A, T Documents, T61 page 318.

Dr Rosen outlined all the previous treatments that the applicant had received up until that point and remarked with respect to his current condition that:
[the applicant’s] main symptom is “brain fog”. This symptom is a constellation of symptoms of cognitive impairment affecting his concentration, memory, attention, executive function, decision-making, speed of information processing, tasks requiring divided attention and new learning. He is unable to read a book due to these problems. All these symptoms are exacerbated by significant ongoing fatigue.[103]
[103] Exhibit A, T Documents, T61 page 320.
Dr Rosen conducted a physical examination and assessed the applicant’s state at that time. Dr Rosen assessed:
In my opinion [the applicant] fulfills diagnostic criteria for migrainous vertigo…
The acute transformation in November a few days before his return to work and on the day that he was due to attend a dinner in relation to his work… [his symptoms were] on balance probably triggered by his plans to return to work…
In my opinion, according to [the applicant’s] description of his working environment, he perceived a significant degree of work-related stress at the time of onset of his psychological condition in late September.
He continued to be susceptible to stress factors even after he was on leave from the workplace and [the applicant’s] migrainous vertigo relapsed in the context of his preparations to return work and subsequently symptoms progressed at the end of 2013 and early 2014 during period of further stress when based on the result of an MRI brain scan and whilst waiting for a neurological assessment he thought he might have multiple sclerosis.
It is likely that other less well characterised factors are operating in [the applicant’s] case, mainly genetic factors and other susceptibilities including childhood trauma.[104]
[104] Exhibit A, T Documents, T61 pages 327-328.
Dr Rosen concluded that whilst the cause of the applicant’s symptoms could not be absolutely stated, he opined that the applicant’s work significantly contributed to its onset due to work related stress, or, that such stress aggravated his underlying susceptibility to stressful situations.[105]
[105] Exhibit A, T Documents, T61 page 333.
Dr Rosen produced a supplementary report on 6 February 2015.[106] This document very briefly summarised that the applicant had been referred for testing to establish the stress thresholds that would trigger his physical symptoms. Dr Rosen reiterated the findings of his original report that work stress was a principal cause of the applicant’s symptoms.
[106] Exhibit A, T Documents, T71 page 396.
On 16 January 2015, Dr Oelrichs, psychiatrist, wrote a report in relation to the applicant’s psychiatrist conditions.[107] She recorded a history and presentation that largely mirrored earlier reports. Dr Oelrichs noted that the applicant attended her office with written records of his history and other reports which he referred to and relied on when orally detailing his history of symptoms during their interview.[108] Dr Oelrichs assessed the applicant’s psychiatric symptoms accordingly:
Taking into account [the applicant’s] presentation on interview and on review of the history supplied, [the applicant] is currently presenting with a complex history stemming from early childhood significant vulnerabilities relating to trauma. The nature of this trauma is such that in the past [the applicant] has adjusted to this by engaging in work and highly active and physically demanding pursuits in order to suppress memories of this trauma. The evidence of [the applicant] having developed a reactivity to this trauma over time has been such that he has been preoccupied by physical symptomatology.
More recently he has developed a more significant emotional response which has been described as an adjustment reaction with mixed emotional features.
The likelihood is that [the applicant] does have a pre-existing vulnerability to stress relating to his childhood trauma and his condition could best be described, using a DSM-IV-R diagnostic formulation, as post-traumatic stress disorder, chronic. This condition has been exacerbated over a period of time due to his reported experiences within the workplace. The likelihood however is that [the applicant] would have become vulnerable to stress over time and the contribution of the workplace stressors has been mainly as a trigger to set off a train of events. His psychological state has also been aggravated by his described physical condition and ongoing physical symptoms of vestibular migraine.[109]
[Tribunal’s Emphasis]
[107] Exhibit A, T Documents, T68 page 375.
[108] Exhibit A, T Documents, T68 page 378.
[109] Exhibits A, T Documents, T68 page 384.
Dr Oelrichs was asked the question of whether the applicant’s new psychological conditions arose as a direct result of the adjustment disorder he was originally compensated for. In response to this Dr Oelrichs responded:
the condition of adjustment reaction with mixed emotional features… this condition is likely to have been chronic and present since previous childhood trauma which has created a vulnerability for him… the factors which have contributed to the exacerbation of this condition are multifactorial and relate to [the applicant’s] perceived workplace stressors, his relationship stressors and... his current physical condition.[110]
[110] Exhibit A, T Documents, T68 page 386.
Dr Oelrichs also opined that the applicant’s physical state was the largest contributing factor to his then present mental state.
On 20 January 2015, Ms Robyn Bridges produced a psychological report for the applicant.[111] Ms Bridges’ report largely mirrored Dr Oelrichs’ position on the cause and presentation of the applicant’s psychological impairments.
[111] Exhibit A, T Documents, T69 page 390.
The delivery of these reports along with a further supplementary report from Dr Oelrichs resulted in the settlement decision by the Tribunal on 27 February 2015.
The applicant’s original Permanent Impairment & Non-Economic Loss Claim
On 23 January 2015, the applicant filed a claim for permanent impairment. On 30 November 2015 Dr Ringrose authored a report in relation to the applicant’s impairment where he assessed the applicant as suffering from 20% WPI.[112] Dr Ringrose was of the view that the applicant’s WPI would continue indefinitely and could not be treated. Dr Ringrose’s specialty was targeted at the applicant’s physical symptoms, but the assessment was still targeted at determining whole person impairment.
[112] Exhibit A, T Documents, T83 page 450.
The applicant also relied on a report produced by Dr Shilton which largely mirrored the findings of Dr Ringrose concluding non-economic loss scores similar to both Dr Ringrose and the applicant’s self-assessment.[113]
[113] Exhibit A, T Documents, T90 page 516.
Dr Scheepers provided a report on 15 November 2015 in which he opined that the applicant had 0% WPI where Dr Scheepers noted that this was a whole person assessment and not just of his psychiatric symptoms.[114] Dr Scheepers stated:
The overall assessment of current psychiatric impairment based on Table 5.1 is 0%. This is based on the level of current symptomatology. However, [the applicant] is vulnerable, due to the presence of these psychiatric conditions, and if placed under stress is likely to decompensate rapidly and develop significant impairment due to the psychiatric symptoms.
…
Please note that [the applicant] and his treating doctors’ scores were not based on a psychiatric assessment, but based essentially on [the applicant’s] physical illness. To be consistent with their procedure, I have also based my scores on the overall presentation that [the applicant] had today, not isolating the psychiatric symptoms but taking a whole person impairment into account…[115]
[114] Exhibit A, T Documents, T84 page 484.
[115] Exhibit A, T Documents, T84 page 486.
On 30 November 2015, Dr Ringrose provided a report[116] in which he assessed the applicant as suffering from 20% WPI. Dr Ringrose explained the applicant’s progression to date and the medical interventions he had received thus far and that his condition would not likely improve. The assessment of Dr Ringrose was made with the assumption that the applicant could not drive.
[116] Exhibit B, Hearing Book, A4 page 42.
After the applicant requested reconsideration on 12 January 2016, the respondent varied their decision without any further medical evidence being produced. This resulted in an award to the applicant in the sum of $61,641.54.[117] The reconsideration decision only varied the portion of the decision pertaining to the applicant’s migraines. The psychiatric aspect of the decision was affirmed and thus no liability was determined. The applicant made an application for review to this Tribunal.
[117] Exhibit A, T Documents, T90 page 517.
On 22 July 2016, Dr Ringrose produced a further report[118] about whether the psychological symptoms which were not included in the revised assessment of the applicant’s WPI ought to be included in that determination. Dr Ringrose recounted that he did include those symptoms when he assessed the applicant’s WPI and that they do not cause functional impacts separate to the vestibular migraines the applicant was already being compensated for. He opined they all intermingled into the condition that was described as vestibular migraine.[119]
[118] Exhibit A, T Documents, T92 page 531.
[119] Exhibit A, T Documents, T92 page 538.
The application of the applicant to this Tribunal was withdrawn shortly after this report was filed.[120]
[120] Exhibit A, T Documents, T94 page 543.
The applicant’s second claim pursuant to ss 14 and 16 of the SRC Act
The second claim filed by the applicant pursuant to ss 14 and 16 (“the second claim”) was concerned with the respondent accepting liability for “secondary condition of polysymptomatic medical symptoms”.[121] This was requested on 28 July 2016 to be recognised alongside the claims for vestibular migraines and adjustment disorder which at this point were both recognised and had been compensated by operation of the consent decision made by the Tribunal on 27 February 2015.
[121] Exhibit A, T Documents, T95 page 544.
On 8 December 2016, an activities of daily living report was filed after the applicant applied to the Tribunal.[122] The report was authored by Ms Mariam Kocak and she undertook an extensive analysis of the applicant’s ability to independently operate. In response to the question, “Does the need for assistance arise from a compensable injury?”, Ms Kocak responded:[123]
[The applicant’s] approved condition has resulted in a reduced capacity to engage in activities of daily living. This has affected his ability to independently. Effectively engage in and complete tasks related to gardening and utter/rooftop maintenance.
[122] Exhibit A, T Documents, T101 page 566.
[123] Exhibit A, T Documents, T101 page 570.
Ms Kocak did not assess the extent to which the applicant’s employment was a contributor to his then current conditions.
The applicant’s second claim for Permanent Impairment and Non-Economic Loss (“the second PI claim”)
The applicant made a further claim for permanent impairment and non-economic loss under s 14 of the Act which was denied. In the reconsideration decision, the delegated remarked:
I also note that the delegate [the original delegate of the determination] reported “I cannot be satisfied also that in the absence of any diagnosable condition relating to the various ‘unexplainable symptoms’ affecting you neurologically, your decompression injury diagnosed in 1992, barotrauma and sleep apnoea, I find it is tenuous to establish the significant contribution of your compensable condition to your subject claimed conditions.[124]
[124] Exhibit A, T Documents, T104, page 594.
The applicant sought further review of this reconsideration decision by the Tribunal by way of application dated 3 May 2017.[125]
[125] Exhibit A, T Documents, T108 page 610.
The applicant filed a letter from Dr Carl Edmonds OAM dated 1 August 2014, consultant in Diving Medicine in which Dr Edmonds states with respect to the decompression diving injury the applicant sustained in 1992:[126]
To relate current symptomatology to the diving pathology that may have been present in 1992, is questionable and unlikely… It is reasonable to suggest that divers with severe neurological damage may subsequently develop evidence of cognitive impairment and/or other neuropsychological sequalae…but even this is contentious.
[126] Exhibit A, T Documents, T108.2 page 627.
The applicant also filed a report by Dr John Cameron dated 12 April 1994 which was addressed to the Workers’ Medical Board of Queensland in relation to the applicant’s diving injuries at that time. Dr Cameron considered the applicant’s symptoms that arose from this diving incidence including confusion, disorientation, speech dysphasia, and short-term memory loss. In total, Dr Cameron concluded that the applicant had probably suffered from an episode of the bends or decompression sickness which he was treated for in Townsville, but that by the time of his examination, some 3 years after the incident, these symptoms could not be identified.
On 1 July 2017, a report from Ms Hazel Bucher, Nurse Practitioner, was filed.[127] Ms Bucher administered a test on the applicant on 16 June 2017 to assess his baseline cognitive abilities across 5 limbs: immediate memory, visuospatial abilities, language, attention, and delayed memory. In these fields, the applicant respective scored in the 10^th percentile, 92^nd percentile, 16^th percentile, 3^rd percentile, and 0.1^st percentile with an overall score placing him in the 7^th percentile of cognition. The report considered that the applicant had difficulty recalling words that had been given to him earlier in their conversation and was unable to recall 7 of the 20 words given to him in a list. Similarly, he could not recall the abstract details of a story he was told after a period of distraction. Concluding her report, Ms Bucher remarked that the applicant’s test results were not outside of normal range but were below those expected of someone in his managerial type role.
[127] Exhibit A, T Documents, T109 page 642.
A further report by Linda Duniam for the Konekt group proposed several means of improving the applicant’s standard of living with his impairments.[128] However, this report was largely a recitation of the applicant’s own reported conditions and impairments. It did not undertake an assessment of the applicant’s condition at the time.
[128] Exhibit A, T Documents, T111 page 647.
Shortly after this report was filed, the applicant withdrew his application to this Tribunal in relation to the second PI claim.
The applicant’s current claim for Permanent Impairment and Non-Economic Loss (“the present claim”)
On 22 June 2018, Amanda Curran and Jason Beard, psychologists, reported on the applicant’s mental state and the rehabilitative needs to facilitate his return to work.[129] The psychologists conducted an assessment at the applicant’s home and took notes of his self-reported symptoms and that he progressively exhibited cognitive decline as the assessment proceeded. It was noted that he would usually take a nap after family events or emotional experiences.[130]
[129] Exhibit A, T Documents, T115 page 659.
[130] Exhibit A, T Documents, T115 page 659.
The reports described the applicant’s self-reported symptoms and reviewed the independent medical examinations undertaken by the variety of the doctors who the applicant had seen up until that time as well as the medications that the applicant was taking at that time. The report concluded that the main hurdles preventing the applicant’s mental recovery were his perception of his reduced function, his socially restricted lifestyle and his driving restrictions imposed by law.[131] The report suggested that if the applicant was able to work to overcome these barriers, he could make real attempts toward full recovery.
[131] Exhibit A, T Documents, T115 page 663.
The same psychologists produced a referral to Dr Shilton who had previously seen the applicant, requesting his views on further intervention.[132] On 6 July 2018, Dr Shilton replied that the applicant would not benefit from further treatment from him and that his condition was stable.
[132] Exhibit A, T Documents, T116 page 666.
On 16 July 2018 the applicant lodged the present claim with the respondent.
As part of this claim, the applicant adduced a letter from Dr Shilton dated 16 July 2018 which reported that the applicant suffered from “brain fog”, “reduced level of hearing”, and “tinnitus”.[133] In the claim the applicant’s treating professional listed the applicant’s suffering as follows:
[133] Exhibit A, T Documents, T117 page 671.

Category of Permanent Impairment

Rating

Pain

unrated

Suffering

3-4/4

Mobility

2/5

Social Relationships

2-3/5

Recreation and Leisure Activities

4-5/5

Other loss

1/3

Dr Mark Paine, neurologist, produced a further report dated 4 September 2018.[134] Dr Paine reported that at that time, the applicant was capable of walking up to 1.8Km unassisted and that he was attending the local Men’s Shed for social activities. The report summarised the development of the applicant’s various diagnoses and the different specialists he had attended upon. In responding to the questions put to him by the respondent, Dr Pain remarked:[135]
In [the applicant’s] case, I doubt there would be a significant sustained progression but rather temporary exacerbations. The diagnosis of vestibular migraine is not based on clinical signs but rather the clinical profile…as outlined in Dr Rosen’s report… [the applicant] does have a balance disorder which is readily evidence on examination but the finding is non-specific and does not provide any diagnostic confirmation…his condition is likely to remain in his current form for the foreseeable future.
[134] Exhibit A, T Documents, T121 page 703.
[135] Exhibit A, T Documents, T121 page 709.
Dr Paine agreed with Dr Rosen that the applicant maintained a level of 20% WPI from 2013 to the drafting of his report on the basis that condition had plateaued and that he was experiencing occasional temporary upticks rather than a protracted degradation of his overall countenance but that his condition would not likely improve. However, Dr Paine did note the applicant’s current state was best described as an aggravation or triggering of his underlying conditions caused by the stress brought on by his employment at the Antarctic Division. Dr Paine did not give an opinion on the economic loss suffered by the applicant.
On 11 October 2018, Dr Shilton provided a further medical certificate in which he opined that the applicant was permanently impaired.[136]
[136] Exhibit A, T Documents, T122 page 716.
On 2 March 2015, the applicant underwent a sleep study with Dr Sophie Williams of Genesis Sleep Labs. On 10 March 2015, Dr Williams concluded “mild obstructive sleep apnoea with sleep fragmentation and mild oxygen desaturation. Severity of sleep apnoea increased in the supine position and during REM sleep. Occasional periodic limb movements. Cardiac rhythm was sinus”.[137] Dr Williams also recommended the applicant seek a “sleep or thoracic physician review… consider an oral appliance… avoid supine sleep… weight reduction measures”.[138]
[137] Exhibit A, T Documents, T75 page 405.
[138] Exhibit A, T Documents, T75 page 405.
On 1 August 2014, Dr Carl Edmonds OAM, a consultant on diving medicine, wrote an email to the applicant concerning his past and current symptomology. Dr Edmonds OAM opined on the effect of the applicant’s diving incident in 1992 on his current condition.[139] He stated in his email:
I am not capable of giving an expert opinion on the various stress situations or their possible sequelae, but I am competent to give an opinion on the various diving and diving medical aspects of the case. A full C.V. is available on at the bottom of the web page.
The original diving problems were evident in 1991-1992, when there was extreme exposure to both occupational stress, decompression stress and excessive barotrauma effects. At that time it was possible that you may have experienced decompression illness of an acute nature to explain some, but not all, of your symptoms.
To relate current symptomatology to the diving pathology that may have been present in 1992, is questionable and unlikely. At that time there were no objective neurological lesions present. There was no abnormality in the electroencephalographic tracings. There was no abnormality in the psychological testing, performed to illustrate cognitive impairment, and there was no abnormality in the computerised tomography scans.
It is reasonable to suggest that divers with severe neurological damage may subsequently develop evidence of cognitive impairment and/or other neuropsychological sequelae, as documented in the relevant chapters of the 5th edition of Diving and Subaquatic Medicine text (2014), but even this is contentious. Your presentation was not severe enough to indicate this possibility. Certainly these debatable syndromes bear no similarity to your presentation at this stage.
In summary, there is no reason to believe that your current symptomatology is in any way related to possible diving illnesses sustained in the early 1990s. [140]
[139] Exhibit B, Hearing Book, A24 page 178.
[140] See exhibit B, Hearing Book A11, pages 119-127.

The applicant also filed a series of hearing test reports over the course of his life. He contended that these reports demonstrated that after the onset of his “injury” his hearing loss worsened to include mild and high frequency hearing loss and tinnitus.[141] It is noted the applicant made a series of annotations on these reports explaining what they demonstrate.
[141] Exhibit B, Hearing Book, A26 page 189.
In a hearing test form dated 11 December 2008, Dr D Grant checked a box stating the applicant had no hearing loss or tinnitus.[142] By 2011 this had progressed to “moderate high frequency hearing loss bilaterally”.[143] In a report dated 6 March 2014, after the applicant had been diagnosed with vestibular migraine, Mr Modrovich, audiologist, found that the applicant suffered from moderately severe tinnitus. On 16 February 2015, a hearing test report states there had been unchanged hearing sensitivity in 12 months and that the applicant had “essentially normal hearing”. It acknowledged the assertion of the applicant that his tinnitus was severely affecting him.
[142] Exhibit B, Hearing Book, A26 page 190.
[143] Exhibit B, Hearing Book, A26 page 191.
On 15 January 2019, Dr Jordan Kuyler gave a report in which he opined:
I believe that all the symptoms relate to burnout and I have explained to him that that the pathophysiology and vascular territory to explain vestibular migraine and it is not possible to explain all the above-mentioned symptoms.
Migraine is an episodic stereotypic symptom and it is not possible to suffer from this condition constantly for a period over five years. [144]
[144] Exhibit B, Hearing Book, R12 pages 1131-1133.
On 24 September 2019, the applicant was assessed by Mr Peter Perros, Consultant Clinical Neuropsychologist. In his report dated 8 October 2019, Mr Perros acknowledged the sleep study report of Dr Williams dated 10 March 2015 and remarked:
Sleep disorder can impact on cognitive function and neuropsychological test performance. Given that fatigue is a major presenting complaint, I feel that [the applicant’s] sleep disorder needs to be considered and addressed by [the applicant’s] doctors.[145]
[145] Exhibit B, Hearing Book, R3 page 898.
Mr Perros also acknowledged in his report the WMS-IV Recognition Memory tests in which the applicant displayed poor recognition memory of verbal material. He remarked that:
A neurological opinion is required to determine if the abnormalities detected on the MRI Brain scan (as far back as 2001) could explain the verbal memory weakness, and or whether there is a secondary psychological injury.[146]
and that:
There is also potentially an untreated obstructive sleep apnoea that can be another contributing factor. An opinion from a sleep physician or neurologist is required to help me interpret the test findings.[147]
[146] Exhibit B, Hearing Book, R3 page 908.
[147] Exhibit B, Hearing Book, R3, page 908.
On 9 October 2019, the applicant visited Dr Shilton for a consultation. Dr Shilton recorded in his consultation notes that the applicant had been diagnosed with mild obstructive sleep apnoea and that he “finds his snoring and cognition are both better when he is lighter” and that he “wants to know if there is a pill that can help him lose weight”.[148]
[148] Exhibit B, Hearing Book, R12, page 1107.
The applicant also filed documentation concerning the Australia Day awards issued to him in 2011 and 2012. Obtaining these awards is indicative that prior to the 2013 injury, the applicant was a high achieving employee.
Evidence at Hearing
Oral evidence of the applicant
The applicant, under affirmation, gave evidence, consistent with his written history of symptoms which the applicant prepared[149] and the applicant’s undated written statement,[150] that on 11 November 2013 when he woke up, he felt dizzy and could barely sit up. He stated that prior to this symptom, he was a “high functioning manager flying along as an executive level 2, doing a million hours the last four years”. He stated that prior to 11 November 2013, when he chaired subcommittee meetings, he “never suffered brain fog, couldn’t hear people properly, didn’t have cicadas screaming in [his] ears 24/7”.[151]
[149] Exhibit B, Hearing Book, A14.
[150] Exhibit B, Hearing Book, R1, implied undertaking material, tab 3.
[151] Transcript, page 8.
The applicant asserted that, despite the criticisms of his performance on 23 February 2010 by his then supervisor,[152] his performance as a public servant had been “perfect right up until then”. The applicant gave evidence that his supervisor at the time was “angling for a board position with one of our contractors” and was later removed from her position. The applicant alleged that his supervisor’s removal was the result of an investigation into concerns that he had raised about his supervisor’s conflict of interest between her role and the Department’s contractor. He stated, “you can read into it what you want, the end result was I stayed in my job and she was removed from her position.”[153] He referred the Tribunal to statements of his then colleagues which were written in support of him.[154]
[152] Exhibit A, T Documents, T20.6, pages 105-109.
[153] Transcript, page 30.
[154] Exhibit A, T Documents, T20.4 and T20.5 pages 100-103.
The applicant gave evidence that, despite reporting that in 1992 he suffered an illness whilst working in Torres Strait, he had none of his current symptoms prior to 11 November 2013.[155]
[155] Transcript, page 9.
The applicant gave evidence regarding his scuba diving. He had done over 3,000 dives, but he has not dived since 1992 when he suffered decompression sickness.[156]
[156] Transcript, page 9.
The applicant was referred to the results of a hearing test which he undertook on 29 April 2011. Under cross-examination, the applicant accepted that the test revealed “mild to moderate high frequency hearing loss” prior to the aggravation of vestibular migraine in November 2013. He remarked that earlier reports show that high frequency hearing loss occurred as early as 2008.[157]
[157] Transcript, page 11.
The applicant was referred to the report of Dr Moore dated 29 November 2013[158] where Dr Moore states that the applicant’s “dizziness has not been accompanied by any aural symptoms by way of hearing change or tinnitus”. The applicant gave evidence that, although he did have tinnitus prior to 2013, he had it “only on and off, very occasionally, very rarely, every few months and it would last 30 seconds”.[159] The applicant confirmed that he did tell Dr Moore that his mother developed hearing loss.[160] The applicant accepted that the report of Dr Moore did not indicate a worsening of his hearing, but he remarked that the report did state that there had been some hearing impairment for the last two years.[161]
[158] Exhibit A, T Documents, T7.
[159] Transcript, page 12.
[160] Transcript, page 13.
[161] Transcript, page 13.
The applicant was invited to comment on the audiogram attached to Dr Moore’s report of 29 November 2013. The applicant insisted that there is a defect in Dr Moore’s audiogram because the hearing test was not conducted in accordance with Australian Hearing procedures as Dr Moore used a threshold of 30 decibels (dB) rather than 20dB. The respondent then referred the applicant to a later hearing test by Audio Clinic on 6 March 2014.[162]
[162] Exhibit B, Hearing Book, A22, page 169.
The applicant accepted that the audiogram dated 6 March 2014 recorded the same hearing loss as had been recorded in Dr Moore’s audiogram of 29 December 2013. The applicant accepted that the report from Audio Clinic of 6 March 2014, which referred to “mild” hearing loss in the applicant, did not report severe hearing loss.[163]
[163] Transcript, page 18.
The applicant remarked in oral evidence that in “an absolutely quiet room [he] can hear normal speech” and that in any other setting he cannot.[164]
[164] Transcript, page 20.
The applicant was referred to Dr Moore’s report of 17 November 2017.[165] The applicant accepted that Dr Moore did not, in his report, attribute his tinnitus to the vestibular migraine condition, but he asserted that Dr Moore’s report is wrong.[166]
[165] Exhibit B, Hearing Book, R1, implied undertaking material, tab 11.
[166] Transcript, page 22.
The applicant was invited to comment on the report of Mr Nick Modrovich, audiologist, which states, “in view of the mild high frequency hearing loss and bilateral moderately severe tinnitus, [the applicant] would benefit from wearing binaural combination sound generator/hearing aids.”[167] The applicant gave evidence that he has not sought to obtain hearing aids and that he has been “putting up with” his condition ever since then.[168]
[167] Exhibit B, Hearing Book, A22, page 169.
[168] Transcript, page 24.
The applicant gave evidence that at night-time he listens to a “dull monotone voice on my podcast or something to try block out cicadas, so I can get to sleep.”[169] He remarked that the “low level noise generator” is “not always successful, I do get some sleep. Sometimes I end up having to get up early in the morning because it’s just driving me nuts.” He also gave evidence that to go to sleep he uses “white noise machines” such as a fan and that he uses the radio “going with low level monotone voices, sometimes with falling rain and thunderstorms, and all that, to try to cancel out the tinnitus as much as I can”.[170]
[169] Transcript, page 24.
[170] Transcript, page 28.
The applicant accepted that Dr Shilton, in his report, did not refer to him being assisted by a low-level noise generator.[171] The applicant asserted, however, that he gave Dr Shilton a copy of the history of symptoms which he has prepared.[172]
[171] Transcript, pages 24-25.
[172] Exhibit B, Hearing Book, A14; Transcript, page 29.
The applicant gave evidence that his tinnitus is such that “when there’s a weather change coming and the pressure changes and that - you just about squeeze in your head, [it] drives you nuts”.[173]
[173] Transcript, pages 28-29.
The applicant confirmed that he had disclosed to Dr Rosen, Dr Hutton and Dr Chen that there is a history of migraines in his family. He stated: “My sister occasionally gets [migraines]. My mum’s got hearing loss. … My dad did [have migraines] for a little while he put it down to the ultra-strenuous activity.”[174]
[174] Transcript, pages 31, 33.
The applicant was taken to the report of Dr Williams dated 2 March 2015. The applicant’s weight was reported as 116 kgs at the time of the sleep study. The applicant gave evidence that in 2007 he weighed approximately 130 kgs. He stated that in 2008 he reduced his weight to less than 112 kgs, and he accepted that in August 2018 he had reached 118 kgs. He gave evidence that he currently weighs more than 116 kgs.[175] The applicant accepted that his weight reduction measures have not been successful.[176]
[175] Transcript, page 33.
[176] Transcript, page 34.
The applicant was asked whether he has had any specific treatment for sleep apnoea. He stated that he had discussed it with Dr Shilton and that he had been avoiding sleeping on his back and has been sleeping on his side. He stated:
The problem with my vestibular migraines is that I’m limited in the amount of physical exercise I can do, which makes it really hard because if I go out, I mean I’m tired now just from all this. If I go out and start walking I can get to about 1.5, 1.6 kilometres. If I do more than that, I end up destroying the rest of my day. I have no time left for family. I end up in bed at 5 o’clock.[177]
[177] Transcript, page 33.
The applicant was taken to the remarks of Mr Perros, Consultant Clinical Neuropsychologist, in his report dated 8 October 2019 where Mr Perros noted that he may suffer untreated obstructive sleep apnoea which may be a contributing factor to his memory problems. The applicant stated that he did not recall discussing his sleep apnoea with Mr Perros but accepted that he had discussed it with Dr Shilton.[178] He accepted that he suggested to Dr Shilton that his problems with cognition are better when he carries less weight,[179] but he asserted that his cognitive problems started with his vestibular migraines and that his vestibular migraines caused his increased weight due to his inability to exercise.[180]
[178] Transcript, page 35.
[179] Transcript, page 36.
[180] Transcript, page 36.
The applicant remarked that in 2008 he lost weight through a gastric sleeve operation.[181]
[181] Transcript, page 36.
The applicant was taken to a driving assessment report dated 15 September 2018 in which the assessor remarked that he was “[a]lert, able to concentrate fully for entire 2 hr off-road assessment”. The assessor indicated that the applicant “should not have any difficulty with the cognitive components of driving.” The applicant gave evidence that his cognitive dysfunction comes and goes and is “highly variable”. He gave evidence that he is able to drive some of the time but that “it’s unpredictable”.[182]
[182] Transcript, page 40.
The applicant was taken to tables 12.2, 12-B and 12.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 which Dr Shilton referred to in his report dated 16 July 2018. When asked about table 12.1.1, which relates to “stupor, coma, and permanent vegetative state”, the applicant stated: “I don't have a coma and I'm not in a permanent vegetative state.”[183] Likewise, when referred to table 12.1.2, the applicant confirmed that he does not have “epilepsy, seizures and convulsive disorders”.[184] When asked about tables 12-B and 12.2, the applicant confirmed that he does not have clinical dementia.[185]
[183] Transcript, page 47.
[184] Transcript, page 47.
[185] Transcript, page 47.
The applicant was asked about the non-economic loss questionnaire which was appended to his claim for permanent impairment and non-economic loss dated 16 July 2018.[186] The applicant was asked about the part of the questionnaire headed “Recreational and leisure activities” in which he made a reference to joining a “local men’s shed”. The applicant gave evidence that he went to the men’s shed three or four times but gave it up because, “it was basically a bunch of old blokes sitting around whinging” and he “didn’t enjoy it”.[187] It was put to the applicant that his involvement with the men’s shed suggests that he does have some capability to engage in social relationships. The applicant responded that he has some capability by that he “can't sit there for hours on end and talk to people, [he] get[s] too fatigued and just too far gone.”
[186] Exhibit A, T Documents, T117, pages 672-678.
[187] Transcript, page 50.
The applicant accepted that his current limitations regarding his recreational and leisure activities “are not all that different to the limitations [he] had back in 2016”.[188]
[188] Transcript, page 50.
Oral evidence of Dr Paine
On 21 April 2021, Dr Mark Paine, neurologist, gave evidence before the Tribunal.
In evidence before the Tribunal Dr Paine affirmed his opinion, as stated in his supplementary report of 16 June 2020,[189] that the applicant suffers a “complex vestibular disorder which included vestibular migraine and a condition known as ‘Persistent postural-perceptual dizziness’.”[190] He opined that the applicant’s symptoms are unlikely to improve further,[191] and he agreed with the applicant that they are chronic and permanent.[192]
[189] Exhibit B, Hearing Book, R6.
[190] Transcript, page 54.
[191] Transcript, page 55.
[192] Transcript, page 64.
Dr Paine opined that the link between the applicant’s symptoms of hearing loss, tinnitus and cognitive dysfunction and the applicant’s vestibular disorder is not necessarily causative, but that such symptoms would be consistent with the symptoms that patients with chronic vestibular disorders or chronic migraine complain of.[193] He remarked that cognitive problems “are not a standard feature” of vestibular disorders but that “patients do complain of symptoms such as brain fog.” He remarked that symptoms of hearing loss and tinnitus are “consistent but not typical” of patients with vestibular migraine.[194]
[193] Transcript, page 55.
[194] Transcript, page 56.
In his supplementary report of 16 June 2020, Dr Paine had concluded on the balance of probabilities that “any cognitive dysfunction suffered by [the applicant] would not be the result of the work-related aggravation of the vestibular migraine.” He remarked that, in light of several psychological and psychiatric reports, at the time of authoring the report he “thought there were factors were contributing to [the applicant’s] cognitive complaints”.[195]
[195] Transcript, page 56.
Dr Paine opined that the applicant’s sleep apnoea could contribute to his cognitive dysfunction,[196] although he remarked that sleep apnoea is outside the scope of his practice.[197]
[196] Transcript, page 56.
[197] Transcript, page 61.
Taking into account the applicant’s evidence that he holds a current driver’s licence and that he can drive one or two times a week without assistance, Dr Paine revised his assessment of the applicant’s WPI, stating that it is now slightly less than 20 per cent.[198]
[198] Transcript, page 57.
Dr Paine gave a revised non-economic loss rating with respect to “social relationships” and “recreational and leisure activities” under the Comcare Guide. In his supplementary report of 16 June 2020, he had graded the applicant with a score of 2 for social relationships and a score of 4 for recreational and leisure activities.
Dr Paine revised the score for social relationships to 1 after taking into account the applicant’s evidence that he had attended a local Men’s Shed once a week for three to four weeks before it closed. Dr Paine’s rating with respect to recreational and leisure activities remained unchanged.
Dr Paine reiterated his opinion that it is very difficult to say with certainty whether the applicant’s symptoms are related to his accepted vestibular disorder.
RESPONDENT’S SUBMISSIONS
The respondent contended that the evidence does not establish, on the balance of probabilities, that the applicant’s claimed impairments (hearing loss, tinnitus and cognitive dysfunction) resulted from the accepted injury.
In relation to the claimed hearing loss, the respondent accepted that the applicant does suffer a hearing impairment as a result of high-frequency hearing loss sustained prior to becoming a Commonwealth employee.[199] The respondent further accepts that the applicant has had difficulties hearing frequencies above 6,000 hertz (Hz) since at least 2008.[200]
[199] Respondent’s Closing Submissions, dated 19 May 2021.
[200] Respondent’s Closing Submissions, dated 19 May 2021.
The respondent submits however, that the applicant’s claimed hearing loss at speech frequencies (lower frequencies) is not supported by the evidence. This submission has two key premises: a person has “normal” hearing if they can hear sounds at or below 20 dB and that audiogram results allow for a 10dB variation and as such, should be interpreted with caution as they can be imprecise.
The respondent relies on a tabulation of five hearing test results of the applicant (with one result recorded prior to the accepted injury, in 2011) at frequencies at and below 6,000Hz.[201] The respondent submits that these results support the conclusion that the applicant has normal hearing at and below frequencies of 2,000Hz and does not suffer a hearing impairment. The respondent contends that the two results (6 March 2014 and 18 February 2021) indicating mild hearing loss in the applicant’s right ear were not replicated, nor verified by later tests and are within the margin of error for audiograms. In totality, the respondent submits that the Tribunal should interpret these results with caution.
[201] Respondent’s Closing Submissions, dated 19 May 2021.
In the event the Tribunal found the applicant did have hearing loss at “speech frequencies”, the respondent submits that the medical evidence, namely four reports of Dr Philip Moore, Dr Edward Ringrose, and Dr Mark Paine, all support the conclusion that the applicant’s hearing loss cannot be directly linked to his vestibular migraine and is more likely to be the result of a heredodegenerative condition (i.e. genetic factors).[202] The respondent notes that Dr Paine’s oral evidence was largely consistent with this conclusion, reiterating that precisely identifying the cause of hearing loss was difficult and he could not determine a direct cause in the case of the applicant.
[202] Respondent’s Closing Submissions, dated 19 May 2021.

It is not in issue that the applicant had hearing loss in the high-frequency range before he became an employee of the APS. What the applicant now contends is that his loss of hearing at “speech frequencies” are as the result of his accepted injury. It is also not in issue that the “speech frequencies” are below the high-frequency range.
The respondent has submitted the following table which summarises the data from five hearing tests for the left ear and right ear which were performed between 2011 and 2021:

Date 250 Hz 500 Hz 1000 Hz 2000 Hz 4000 Hz 6000 Hz

29 April 2011*
L - 15dB 10dB 5dB 20dB 30dB

R - 10dB 10dB 10dB 10dB 40dB

29 November 2013 L 20dB 20dB 20dB 10dB 25dB 40dB

R 20dB 20dB 20dB 20dB 25dB 40dB

6 March 2014 L 20dB 20dB 20dB 15dB 30dB 40dB

R 20dB 25dB 20dB 15dB 25dB 50dB

16 February 2015 L 15dB 12dB 10dB 20dB 30dB 45dB

R 15dB 20dB 15dB 20dB 25dB 50dB

18 February 2021 L 15dB 20dB 15dB 20dB 35dB 45dB

R 20dB 20dB 20dB 25dB 35dB 50dB

* This audiogram was undertaken prior to the accepted injury.

These tests were performed both before and after the time of the accepted injury in 2013. The applicant does not take issue with the accuracy of the data contained within this table, although he does question the methodology used to obtain the data.
Does the applicant suffer a hearing impairment and tinnitus?
The applicant contends that the audiogram that was performed in the rooms of Dr Moore on 29 November 2013 was not in accordance with the standards of Australian Hearing. The applicant has pointed out that there is some variation in the different audiogram test results. However, Hearing Australia has indicated that a margin of error of 10dB in audiogram results is acceptable and that test results can vary and not just because of the equipment that is used.[211] This may explain why there is a variation of the test results of the right ear at the frequency of 500 Hz. On 6 March 2014 Mr Modrovich, audiologist, detected a hearing loss of 25 dB whereas this hearing loss was not detected in the later tests on

16 February 2015 and 18 February 2021. The 29 November 2013 test results and the 6 March 2014 test results are within the accepted tolerance of 10dB. Because of this I consider that there is no basis for the contention that the audiogram of Dr Moore on 29 November 2013 was not in accordance with the standards of Australian Hearing. It was also fairly put to the applicant while he was giving evidence that the handwritten notes on the audiogram which accompanied the report of Mr Modrovich indicated that there was some improvement in the low and moderate frequency hearing loss. While the applicant did not agree with that proposition the notes certainly show an improvement in the hearing loss of the applicant and this may explain why there is a variation of test results.
[211] Exhibit F, Email chain between Applicant and Ms Orsillo between 17-21 March 2021.
On 6 March 2014 Mr Modrovich, audiologist, reported that the applicant then had “mild class frequency hearing loss and bilateral moderately severe tinnitus”.[212] The tinnitus assessment was made after the applicant completed a tinnitus reaction questionnaire. It would seem that the bilateral moderately severe tinnitus assessment was made upon the self-report of the applicant. Mr Modrovich also then reported that the applicant would benefit from wearing bilateral combination sound generator/hearing aids.
[212] Exhibit B, Hearing Book, A22, page 169.
While I accept that the applicant has a hearing impairment, it is difficult to accept that the applicant has difficulty in hearing “speech frequencies”. Dr Moore in his report dated

29 November 2013 has stated that the hearing loss of the applicant was then “chiefly affecting frequencies above ‘speech frequencies’”. Apart from the 2014 audiometry report, later test results do not appear to be confirmatory of the applicant in difficulty in hearing “speech frequencies”. I have previously mentioned that the hearing tests on 16 February 2015 and 18 February 2021 do not indicate that the applicant has such a hearing loss at the frequency of 500 Hz as was indicated by the hearing test on 6 March 2014.
The applicant has not followed the recommendation of Mr Moderevic that he would benefit from wearing bilateral combination sound generator/hearing aids. In giving evidence the applicant confirmed that he has not used hearing aids. While the applicant has remarked that he has “been trying to get Comcare to sort this out”, the applicant would, in my respectful opinion have taken steps to get hearing aids, at least in the public system, if he indeed has had difficulty in hearing “speech frequencies”.
If the applicant suffers from tinnitus to the extent that he claims I also would have expected that he would have obtained an appliance such as a low-level noise generator. The applicant in giving evidence has confirmed that he does not use a low-level noise generator. Dr Shilton who reported on the tinnitus condition of the applicant does not mention that the applicant requires a low-level noise generator.
Does the applicant’s hearing impairment result from the accepted injury?
In these reasons I have outlined the nature of the comprehensive medical examination that Dr Moore had performed on the applicant. In his report dated 29 November 2013,[213] Dr Moore gave cogent reasons for his initial opinion that the tinnitus and hearing loss condition of the applicant is of a heredodegenerative type. Dr Moore in forming his opinion had regard to the family history of hearing loss whereby the mother of the applicant had developed hearing loss in her forties but was definitely aided in her fifties. I should indicate that I have formed a favourable opinion of the applicant in making his honest disclosure of his family history to Dr Moore.
[213] Exhibit A, T Documents, T7, page 40.
After Dr Moore gave his initial opinion that the tinnitus and hearing loss condition of the applicant is of a heredodegenerative type he took the prudent course of action to have an MRI scan to see whether there was any ‘concealed central mischief’. After the MRI scan was performed Dr did not report that there was any pathology to explain the tinnitus and hearing loss of the applicant and did not alter his initial opinion.
I accept the opinion of Dr Moore that the hearing loss condition of the applicant is of a heredodegenerative type. Dr Moore, as an otolaryngologist specialist would certainly have expertise in forming a forming a considered opinion concerning the hearing condition of the applicant. His opinion has certainly not been contradicted by any cogent medical evidence. There is also no cogent evidence which supports the submission of the applicant that the hearing loss condition of the applicant results from his accepted injury.
Dr Moore was not available to give evidence before the Tribunal. I accept that the respondent has made reasonable endeavours to attempt to locate him.[214] Had the applicant not withdrawn his second application that he made in 2017, it may well have been the case that Dr Moore would have been available to give evidence before the Tribunal concerning his reports. I have come to this conclusion having regard to proximity of the dates of his last report and when the applicant made his second application. I accordingly do not consider the fact that Dr Moore was not available now to give evidence before the Tribunal should detract from the weight that I have placed on his considered assessment.
[214] Exhibit C, Respondent’s letter to Dr Phillip Moore.
After reviewing all the evidence, I have come to the conclusion that the tinnitus condition of the applicant is a long-standing condition which has been in existence for a number of years before the accepted injury in 2013. I have come to this conclusion because on

29 November 2013 (some months after the accepted injury),[215] Dr Moore reported: “He is known to have some hearing impairment for at least the last two years. Steve also has a history of tinnitus in association with his hearing loss”.
[215] Exhibit B, Hearing Book, R1, page 864.
I have also come to the conclusion that the tinnitus condition of the applicant was linked with the hearing impairment having regard to the use of the word ‘association’ in that report. My opinion is reinforced by the later report of Dr Moore dated 17 November 2017 in which Dr Moore remarked: “One of the commonest causes of tinnitus is an underlying sensorineural hearing loss and I believe that this is the cause of [the applicant’s] tinnitus without any underlying competing diagnosis of probability”. I rely upon this considered opinion of Dr Moore who has had the opportunity of examining reports from neurologists (Dr Chen, Dr Hutton and Dr Rosen) as well as later audiogram reports.
Dr Moore has also considered the head injury that the applicant had in 1991 when the applicant was unconscious, Dr Moore discounted the possibility that the head injury caused the hearing loss because a traumatic hearing loss is usually evident after the trauma and does not progress.
Dr Rosen, consultant neurologist, in his report dated 23 December 2014 has also reported that the sudden onset bilateral tinnitus condition of the applicant predates the date of the accepted injury in 2013, he reported that since 2007 the applicant has experienced attacks of the sudden onset bilateral tinnitus. I have therefore concluded that the tinnitus condition of the applicant was not caused by a workplace injury but was in existence before the accepted injury.
I have also concluded that there is no cogent evidence upon which I can find that the hearing loss condition of the applicant is related to the vestibular migraine process. In making this finding I have relied upon the specialists reports that are in evidence. Dr Ringrose in his report dated 22 July 2016 reported that there was no direct connection between the hearing loss of the applicant and his vestibular migraine condition. This was also the opinion of Dr Paine who in his report dated 16 June 2020 remarked: “The possibility of migraine contributing to his hearing loss is controversial and difficult to prove”. I consider that the assessment of Dr Paine was fair. In his examination-in-chief by the respondent, Dr Paine did acknowledge that there was some literature which reports mild symmetrical hearing loss with patients who have vestibular migraine and that there was some consistency in the presentation of the applicant. However, under cross-examination by the applicant, Dr Paine did not accept that the vestibular migraine was a cause of the hearing loss condition. While Dr Paine accepted that the hearing loss may be part of the vestibular migraine process it cannot be proved that this was the case because there could be other factors that have not been identified and the case was very complex. Dr Paine remarked that the presentation of the applicant was not typical, and it cannot be proved that the particular symptom of the applicant is vestibular migraine.
Cognitive Dysfunction
Dr Paine in his report dated 16 June 2020 expressed the following opinion: “On the balance of probabilities any cognitive dysfunction suffered by [the applicant] would not be the result of the work-related aggravation of the vestibular migraine”. In giving evidence before the Tribunal Dr Paine indicated that at the time of the report there were “extensive psychiatric/psychological reports” but remarked “in my reading of the literature … [this] is a very difficult thing to answer”. In giving his evidence Dr Paine remarked: “I think given his chronic vestibular symptoms that cognitive symptoms are probably related but not with any certainty”. The changed opinion of Dr Paine shows the difficulty of investigating the relationship between vestibular migraine and cognitive dysfunction. However, I have later mentioned that Dr Paine has concluded that even if the relationship between vestibular migraine and cognitive dysfunction can be established it would not disturb the current assessment of workplace impairment that is in force.
The applicant has a long-standing sleep apnoea condition. Dr Paine in giving his evidence recognised that sleep apnoea could contribute to cognitive dysfunction and that sleep apnoea was a known factor with cognitive symptoms.
The applicant in giving evidence has asserted that his sleep apnoea condition is only mild. He remarked: “I don’t have to use a thing on my face and I can’t sleep with things on my face, it just doesn’t happen”. I have drawn the conclusion from these remarks that the applicant has decided not to use an appliance. This is despite the recommendation of

Dr Sophie Williams on 2 March 2015 that he should consider the use of an oral appliance.
Dr Williams reported that the severity of the sleep apnoea condition of the applicant increased during the supine position and during REM sleep.[216] I have concluded that the sleep apnoea condition of the applicant can affect his cognitive function. I rely on the report of Mr Peter Perros, consultant clinical neuropsychologist, who reported on

8 October 2019 that sleep disorder can impact on cognitive function and neuropsychological test performance[217] I have given his opinion some weight because he has been in clinical practice for more than 40 years.
[216] Exhibit A, T Documents, T75, page 405.
[217] Exhibit B, Hearing Book, R3, page 898.
I am conscious that Dr Ringrose in his report dated 22 July 2016 has concluded that there is no direct connection between the cognitive dysfunction condition of the applicant and the work-related aggravation of the vestibular migraine. While Dr Ringrose may be correct, I have decided that it would not be fair to the applicant to make a finding on this question unless and until the sleep apnoea condition of the applicant has been treated.
What is the applicant’s degree of whole person impairment?
On 30 November 2015 Dr Ringrose has assessed the applicant having a 20% degree of whole person impairment. Central to his assessment for that category of 20% was the fact that the applicant was unable to drive a car due to his ongoing symptoms.[218] I note that earlier on 22 July 2014 Dr Scott Chambers, consultant psychiatrist, had reported that the applicant was unable to drive a car.[219]
[218] Exhibit A, T Documents, T121, page 703.
[219] Exhibit A, T Documents, T49, page 261.
In his report dated 16 June 2020 Dr Paine confirmed that even if the hearing loss, tinnitus and cognitive dysfunction conditions of the applicant are as a result of the accepted injury (which I have not found is the case), the current degree of whole person impairment of the applicant would remain at 20%.
In giving evidence Dr Paine was advised that the applicant now has a current driver’s licence and can drive when he does not have an episode of migraine and drives once or twice a week. Having regard to the fact that the applicant can now drive, Dr Paine considers that the current degree of whole person impairment of the applicant would now be slightly less, perhaps a per cent or two. This assessment is consistent with the opinion of Dr Bruce, consultant physician, who reported on 25 May 2015 that the symptoms of the applicant are improving, albeit very slowly.
I accept these assessments of Dr Paine and Dr Ringrose and find that there is no basis to increase the current degree of whole person impairment of the applicant of 20%. Both Dr Paine and Dr Ringrose have adopted the methodology under the Comcare Guide as there is no table in the guide which refers to vestibular migraine which Dr Ringrose has pointed out is a rare condition which is not covered in the Comcare Guide or the AMA Guides.
For a number of reasons, I cannot rely upon the whole person impairment assessment of Dr Shilton. As I have not found that that the hearing loss and tinnitus condition of the applicant results from his accepted injury, the hearing loss condition and the tinnitus condition cannot be included in the assessment.
The assessment by Dr Shilton of the hearing loss condition does not have regard to the hearing loss of the applicant before the accepted injury. The assessment of the tinnitus condition was not in accordance with the Comcare Guide. The applicant cannot be assigned a 5% WPI rating under Table 7.2 of the Comcare Guide for the tinnitus condition. This is because there is no cogent evidence that the applicant has “severe continuous tinnitus which causes extreme distress”. The applicant has confirmed that he does not use a low-level noise generator and the assessment of Dr Shilton makes no reference to a “low level noise generator”.
The assessment by Dr Shilton includes a rating for the cognitive dysfunction and brain fog conditions which I have not determined are as the result of his accepted injury.
The assessment by Dr Shilton also does not adopt the methodology in the Introduction to Chapter 12 of the Comcare Guide which provides that an assessment does not combine WPI ratings from any of the four categories of cerebral impairment.[220]
[220] Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, 12.0, page 184.
In the submissions there was some discussion as to where there can be a rating under Table 13.7 for sleep apnoea, this condition cannot be included in the assessment as it has not been the subject of a claim by the applicant. Also, under s 24(2) of the Act there has to be consideration of whether an employee has undertaken all reasonable rehabilitative treatment for the condition, and I have already mentioned that the applicant has not undertaken all necessary treatment for the sleep apnoea condition.
The assessment by Dr Shilton is based on the assumption that the applicant does not drive, whereas the applicant has a current driver’s licence which he states he uses a few times of week.
What is the applicant’s non-economic loss?
Having regard to my conclusion that the applicant does not have an entitlement to further compensation under s 24 of the Act, the applicant does not have a further entitlement to non-economic loss under s 27 of the Act.
Dizziness / Vertigo
The applicant has referred to a number of medical reports which concern a persistent postural-perceptual dizziness condition. Dr Chen in his report dated 28 January 2014 remarked that the applicant “possibly has secondary phobic postural dizziness”.[221] Dr Rosen in his report dated 23 December 2014 refers to “phobic postural vertigo-like symptoms”. Dr Paine in giving evidence confirmed his supplementary report which referred to a “complex vestibular disorder which included vestibular migraine and a condition known as ‘persistent postural-perceptual dizziness’”. However, Dr Paine also later remarked: “We cannot prove that particular symptom is vestibular migraine”.
[221] Exhibit A, T Documents, T22 page 116.
The applicant has sought a decision from the Tribunal that “the approved condition should be amended to include PPPD”. The applicant has not made a claim (in relation to the application I am now considering), for his persistent postural-perceptual dizziness condition in accordance with s 54 of the Act. While it is accepted that it is not necessary for a claimant to precisely identify the medical condition for which he seeks compensation, it is necessary for an applicant to put the respondent on notice of the general nature of the injury that the applicant claims that he has suffered.[222] In Comcare v Lofts[223] (at [61]) Mortimer J emphasised the importance of not departing from the approach to the Act set out by the High Court in Canute, as I have earlier mentioned the High Court regarded the concept of “injury” as pivotal to the operation of the Act. The definition of “injury” in s 5A of the Act includes a “disease” (s 5B), which includes an ailment, whether physical or mental (s 4).
[222] Cf., Inco Ships Pty Ltd v Hardman (2007) 96 ALD 604.
[223] (2013)217 FCR 220, 233.

The claim form completed by the applicant indicates that he claims compensation for ‘accepted condition aggravation of migraine – hearing loss, moderately severe tinnitus and cognitive dysfunction’. A fair reading of this claim form does not indicate that the applicant has made a claim in respect of an ailment, being a persistent postural-perceptual dizziness condition. The applicant has previously made reference to this condition in his email dated 27 February 2014 and it certainly aware of the condition.
It is certainly not possible for the respondent (and this Tribunal standing in the shoes of the respondent) to award the applicant compensation for a persistent postural-perceptual dizziness condition when the applicant has not made a claim for the condition. Once a claim has been made the respondent would then have the opportunity to investigate the condition. The respondent has quite properly advised the applicant of his right to make such a claim.
If there is any need to consider the dizziness condition of the applicant, it would be beneficial for any investigation to exclude the possibility of the applicant having oscillopsia. The reports of Dr Rosen and Ms Andrew mention the possibility of the applicant having an oscillopsia condition.
Decision
I affirm the decision under review.

I certify that the preceding 199

(one hundred and ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..................[SGD].........................
Associate
Date: 25 March 2022

Dates of hearing:
21 April 2021

Date of last submission:
18 June 2021

Applicant: By Microsoft Teams

Solicitors for the Respondent: Mr Jamie Watts
Australian Government Solicitor

Counsel for the Respondent: Mr Bradley Dean
Wentworth Chambers

Category of Permanent Impairment	Rating
Pain	unrated
Suffering	3-4/4
Mobility	2/5
Social Relationships	2-3/5
Recreation and Leisure Activities	4-5/5
Other loss	1/3

Date	250 Hz	500 Hz	1000 Hz	2000 Hz	4000 Hz	6000 Hz
29 April 2011*	L	-	15dB	10dB	5dB	20dB	30dB
29 April 2011*	R	-	10dB	10dB	10dB	10dB	40dB
29 November 2013	L	20dB	20dB	20dB	10dB	25dB	40dB
29 November 2013	R	20dB	20dB	20dB	20dB	25dB	40dB
6 March 2014	L	20dB	20dB	20dB	15dB	30dB	40dB
6 March 2014	R	20dB	25dB	20dB	15dB	25dB	50dB
16 February 2015	L	15dB	12dB	10dB	20dB	30dB	45dB
16 February 2015	R	15dB	20dB	15dB	20dB	25dB	50dB
18 February 2021	L	15dB	20dB	15dB	20dB	35dB	45dB
18 February 2021	R	20dB	20dB	20dB	25dB	35dB	50dB
* This audiogram was undertaken prior to the accepted injury.

Dates of hearing:	21 April 2021
Date of last submission:	18 June 2021
Applicant:	By Microsoft Teams
Solicitors for the Respondent:	Mr Jamie Watts Australian Government Solicitor
Counsel for the Respondent:	Mr Bradley Dean Wentworth Chambers