Den Hartog and Comcare (Compensation)
[2017] AATA 1164
•28 July 2017
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/4291
General Division )Re: Jacob Den Hartog
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Deputy President Dr C Kendall
DATE: 1 August 2017
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by replacing any reference to Mr Burgess with a reference to Mr Hawker.
...................................................................
Deputy President
Den Hartog and Comcare (Compensation) [2017] AATA 1164 (28 July 2017)
Division:GENERAL DIVISION
File Number: 2016/4291
Re:Jacob den Hartog
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Deputy President Dr Christopher Kendall
Date:28 July 2017
Place:Perth
The decisions under review are affirmed.
......................[sgd]..........................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – accepted claim for aggravation of hearing loss – revocation of original determinations accepting liability – whether workplace contributed to injury – audiometry pattern not that of noise induced hearing loss – decision affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) – sections 5, 29 and 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) – sections 16 and 124
CASES
Comcare v Levett (1995) 38 ALD 518
Re Willis and Australian Telecommunications Commission (No 2) (1990) 11 AAR 348
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253REASONS FOR DECISION
Deputy President Dr Christopher Kendall
28 July 2017
BACKGROUND
Mr den Hartog is 61 years of age. He was employed with the Department of Defence (the “Agency”) as an apprentice turner and fitter from 17 January 1973 to 15 February 1977 and as a Naval Systems Technical Officer from 16 February 1977 to 12 May 1981, (T13 at 36).
Claim history
On or around 2 October 1981, Mr den Hartog submitted a claim for compensation in respect of ‘deafness due to industrial noise’ which he attributed to excessive noise exposure during his employment with the Agency.
On 16 February 1982, Mr den Hartog’s hearing loss was assessed at the National Acoustic Laboratory in Canberra.
On 28 May 1982, the Commonwealth accepted liability for ‘aggravation of sensori-neural hearing loss’ (T13 at 34) under section 39 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the “1971 Act”).
On 24 March 2014, Mr den Hartog underwent surgery for a right-sided cochlear implant. Subsequently, ear mapping of the implant was required in order to program it to Mr den Hartog’s specifications and needs.
On 17 July 2015, Comcare denied liability for Mr den Hartog’s right-sided cochlear implant surgery under section 16 of the Safety Rehabilitation and Compensation Act 1988 Act (Cth) (the “SRC Act”) (T2 at 16-17).
On 10 March 2016, Mr den Hartog had a full audiological assessment. The following Assistive Listening Devices were identified as being necessary for him (T33 at 83):
(a)Smoke alarm wireless battery powered Brooks;
(b)Vibralarm Bedside strobe and pillow shaker Brooks;
(c)Wireless door chime; and
(d)Alarm clock Bellman Pro
(the “Appliances”).
On 20 April 2016, Comcare denied liability for ear mapping under section 16 of the SRC Act (T2 at 14-15).
On 14 June 2016, Comcare accepted Mr den Hartog’s claim for the Appliances.
On 17 June 2016, Comcare reconsidered the determinations made on 17 July 2015 and 20 April 2016. Comcare did so at Mr den Hartog’s request. Comcare affirmed the determinations denying compensation for the cochlear implant surgery and ear mapping (T2 at 7-10).
On 7 July 2016, Comcare made a reconsideration of own motion determining that, under section 16 of the SRC Act, Comcare was no longer liable to pay compensation to Mr den Hartog for medical expenses (that being the Appliances) in respect of the accepted injury.
On 16 August 2016, Mr den Hartog requested a review of that reconsideration of own motion by the Administrative Appeals Tribunal (the “Tribunal”). Within his application for review, Mr den Hartog included the reviewable decisions dated 17 June 2016 and 7 July 2016 (T2 at 5-6).
DECISIONS UNDER REVIEW
The decisions under review are Comcare’s decisions:
(a)of 17 June 2016, affirming its decisions that it is not liable to pay Mr den Hartog compensation for cochlear implant surgery and ear mapping under section 16 of the SRC Act; and
(b)of 7 July 2016, affirming its decision that it is not liable to pay Mr den Hartog compensation for the Appliances under section 16 of the SRC Act.
ISSUE
The broad issue for the Tribunal to determine is whether Mr den Hartog is eligible for compensation under section 16 of the SRC Act.
This task is made somewhat more complicated as the SRC Act was not in operation at the time the Commonwealth accepted liability for Mr den Hartog’s condition.
The relevant legislation, at that time, was the 1971 Act – in particular, sections 29 and 37. This is discussed further below.
In order to determine this issue the Tribunal must first determine Mr den Hartog’s eligibility under section 29 of the 1971 Act, and whether his condition or any aggravation of it arose out of his employment with the Agency.
To do so, the Tribunal must address the following question:
(a)is Comcare liable to pay Mr den Hartog compensation for the Appliances, cochlear implant surgery and ear mapping?
The medical evidence relevant to this matter spans approximately 35 years. In determining whether Mr den Hartog suffers from an injury or an aggravation of it, as defined in the 1971 Act, the Tribunal will, as necessary, review this entire medical history.
In these circumstances, the Tribunal may find, as per Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, that Mr den Hartog never suffered an injury or an aggravation of it.
If this were to occur, Mr den Hartog would not be entitled to compensation. Further, the Tribunal may also find, as it is entitled to, that whatever ailments Mr den Hartog now suffers from are sufficiently different from his compensable injury because it cannot be said that his current medical condition arises from his employment with the Agency.
LEGISLATION
The relevant legislation in this application is the SRC Act and the 1971 Act. The SRC Act repealed and replaced the 1971 Act which was in force at the time the aggravation, or cause, of Mr den Hartog’s hearing loss is said to have occurred.
Transitional provisions in the SRC Act provide for compensation for injuries which arose before the commencement of the SRC Act on 1 December 1988. As highlighted in the decision of the Full Federal Court in Comcare v Levett (1995) 38 ALD 518, these provisions are “intended to create continuity between the scheme established by the 1971 Act and the scheme created by the 1988 Act.”
The relevant transitional provision (section 124) provides as follows:
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
…
(c)in any other case — under the 1971 Act as in force when the injury, loss or damage was suffered. …
Under the 1971 Act, the relevant sections are sections 29 and 37.
Section 29 of the 1971 Act provides as follows:
29. (1) Where –
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2)If-
(a)the death of the employee;
(b)a loss to the employee of a kind referred to in section 39 or 40;
(c)facial disfigurement to the employee;
(d)a loss to the employee of the sense of taste or smell; or
(e)the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears –
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth;
…
Section 37 further provides:
37.(1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.
Injury in the 1971 Act is defined under section 5 as follows:
“ ‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;”
Disease in the 1971 Act is defined under section 5 as follows:
“ ‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;”
Subject to the operation of section 124 of the SRC Act, Comcare’s liability is created by section 16 of the SRC Act. Section 16 provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
By virtue of section 124 of the SRC Act, entitlement is decided on the basis of whether Mr den Hartog was entitled to compensation under the provisions of the Act in force at the time the injury was suffered. In this case, that is the 1971 Act.
EVIDENCE Before the Tribunal
Mr den Hartog was self-represented at the hearing of this matter but was greatly assisted by his wife. Both Mr den Hartog and his wife struck the Tribunal as entirely credible and trustworthy. They explained their situation with clarity and their assistance was very much appreciated.
The Respondent was represented by Mr Ashley Burgess. The Tribunal thanks Mr Burgess for the courtesy shown towards Mr den Hartog and his wife who, as noted, were legally unrepresented. This cooperative style of advocacy is well suited to a Tribunal of this sort.
The Tribunal received a detailed Statement of Facts, Issues and Contentions from the Respondent dated 19 May 2017. Mr den Hartog provided a consolidated list of audiograms and statements dated 8 June 2017 and tendered various medical/academic commentaries at the hearing which were dealt with during the hearing.
The Tribunal had before it a set of T-documents consisting of 133 pages. This was in addition to a “Supplementary Report of Professor McManus” dated 11 January 2017 and a set of records produced by the Department of Defence in relation to Mr den Hartog’s hearing loss.
The Tribunal also heard oral evidence from Professor McManus, Consultant Ear, Nose and Throat Surgeon and Mr den Hartog.
Non-Medical EVIDENCE
Letter from Mr den Hartog to HMA Naval Dockyard dated 2 October 1981 (T6 at 23)
In a letter addressed to the HMA Naval Dockyard, Mr den Hartog stated that while employed with the Agency, his working conditions exposed him to industrial noise from machinery and tools. This letter, relevantly, reads as follows:
Reference:- Your letter dated 30th June, 19Cl-Compensation (Commonwealth Employees) Act 1071 as amended.
I acknowledge receipt of your above mentioned letter.
The following information is additional information that I could not fit on claim form (ECl) and also information that was requested in the above mentioned letter .
Q2 (b) 4 I commenced duty at the Dockyard during January, 1973 as an Apprentice Fitter and Turner. Late in 1976 I applied for a position at the Dockyard as a Trainee Navy Systems Technical Officer. On completion of the Apprenticeship I was successful in gaining the traineeship and commenced duty as a Trainee Navy Systems Technical Officer .in the "Weapons Mechanical Fire Control Section. Early in 1979 I completed the traineeship and was promoted to Navy Systems Technical Officer Grade 1 which I held until I left the Dockyard during May, 1991.
Q5(b) During my apprenticeship I worked in various workshops and ships. Some of the workshops were .the Apprentice Training Schools for fitting and turning, welding, machine shop, Fitting Out Mechanical Workshop, Maintenance shop, Garage and the Weapons mechanical Workshop. During this period I worked on H.II.S. Ships in engine rooms, boiler rooms, gun turrets, Seacat systems and Ikara Systems.
As a Trainee, and later one, a Technical Officer, I worked on the above weapons systems on board ships, in the Weapons Mechanical Workshop and the Hydraulics Test Q5(c). While working in the above workshops and ships I was exposed to Industrial noise from machinery and tools . Machinery I was working on, or close to, wore steam turbine generators, pumps, diesel generators, forced draft blowers, main engines, high pressure hydraulic pumps and systems and machine tools such as lathes, millers, borers, drills and grinders. Tools: that I was either near or using wore hammers, pneumatic riveting hammers, angle grinders and air hoses which were noisy.
In the ships and above workshops and while working on or near the above machinery and tools, I always tried to protect my hearing with earmuffs. If I was not using my earmuffs, I would keep them In my toolbox which was always close by and easy to get to. If the workplace became noisy I would get the earmuffs from the toolbox and use them.
During machinery trials on board ships I had to standby turbo generators, under full load, sometimes for hours and these trials usually took a number of days to complete. Working near boilermakers using pneumatic angle grinders and riveting hammers in confined spaces was extremely noisy. Some of these riveting operations lasted for weeks. Working on high pressure hydraulic systems and hydraulic test benches was extremely noisy. When testing and setting systems to work considerable time was spent -with the machinery.
Statutory Declaration of Barry McCauley dated 28 October 1981 (T8 at 26)
In a statutory declaration in support of Mr den Hartog’s claim for compensation, Mr Bruce McAuley stated, relevantly, as follows :
Mr Den Hartog worked in the Weapons Workshop for approx. 5 yrs from 1976. During this time he would have been exposed to noise from high frequency hydraulic pumps & systems. He was involved in working in the Gun turrets, Seacat Systems & Ikara Systems of the ships that were in the yard at that time. Here he would have been exposed to the noise generated by the test equipment & other associated ship building noise. I recall that when working with Mr den Hartog he did seem to have a hearing problem. He did wear ear protection when working in the shop.
Letter from Office of the Commissioner for Employee’s Compensation to Mr den Hartog dated 28 May 1982 (Exhibit R4)
This letter, relevantly, reads as follows:
Dear Mr den Hartog,
Your claim for compensation in respect of "deafness due to industrial noise" has been considered under the Compensation (Commonwealth Government Employees) Act 1971, and it has been determined that there is liability to pay compensation under the Act for "aggravation of sensori-neural hearing loss”.
You were examined at the National Acoustic Laboratory in Canberra on 16 February 1982, and a report dated 18 March 1982 (a copy of which is enclosed) provided by the Laboratory following that examination indicates that you now suffer from 38.7 percent loss of hearing. However, that report also indicates that you suffered from a hearing loss equivalent to approximately 29.4 per cent prior to the commencement, of your employment with the Department of Defence. Therefore, it has also been determined, in accordance with the provisions of sub-section 39(9) the said Act, that the increase in loss of hearing from 29.4 to 38.7 per cent was contributed to by your employment, and that you are thereby entitled to a lump payment of compensation of $2,996.17 in accordance with section 39 of the Compensation (Commonwealth Government Employees) Act 1971, and in force immediately prior to 1 September 1981, in respect of 13.17 per cent loss of hearing.
Letter from Mr den Hartog to the Respondent outlining employment details since 1982 dated 4 May 2014 (T26 at 60)
This letter reads as follows:
Thank you for your above referenced letter and sorry for the delay in my response. Partly due to my Cochlear Implant operation on the 24/3/2014 and recovery. So far with switch on and rehabilitation things are progressing very well.
Employment details since 1982
1981-1988:
Position:
Job Function
Department of Transport, Canberra ACT
Technical Officer Grade 2
Marine Navigational Aids Branch. Project management dealing with the conversion of old acetylene Nav Aids to modem solar and wind powered electrical Nav Aids. Project implementation included visits to remote sites by aircraft and ships. Tender assessments, testing and acceptance of lighting equipment. Over 95% of this work was office based and testing of equipment in a quiet photometric and general electronic laboratory
1988-1990:
Position:
Job Function:
Department of Defence, Canberra ACT
Technical Officer Grade 2
Infrastructure Development Section managed the Defence Industry Development Program, which targeted the development of local industry capabilities. Investigated technological gaps in the industrial base, technologies and there existence in Australia, and management of some aircraft licence agreements. This work was office based.
1990-1999:
Position:
Job Function
Airservices Australia, Canberra ACT
Technical Officer Grade 4
Visual Aids Engineering Section. Support of airport lighting systems. Photometric Laboratory work in type approval testing of lights to international standards. This work was office based
Logistics Support Section. Support of the Radar Sensor Procurement Project (RASPP), which covered spares and documentation delivery, monitoring of faults, warranty claims and associated performance of the radar system* This work was office based.
Fault Reporting Section. Maintenance Management Systems, System Manager, database applications, Procedures, User Manuals, Desk Top Publishing, Monthly Reports on Microsoft Excel, designed and developed reports. This work was office based.
Electrical/Mechanical Section. Support for equipment, spares and documentation for systems such as diesel generator sets, power supplies, Uninterruptible Power Supplies (UPS), Radar system drives and bearings, HVAC. This work was office based.
1999-2000
Business Name:
SELF EMPLOYED
Octopuses Garden Aquarium Services, Canberra ACT
Business Operation: Established the business, promotion of business, servicing fish aquariums, invoicing and small business administration. Quiet work environment
2001-2002:
Position:
Job Function:
Australian National University, Canberra ACT
Centre for Sustainable Energy Systems
Technical Officer AMJ04
Laboratory support for academics, engineers, chemists and physicists. Design and manufacture using CAD, ci\M and CNC machine tools as well as general engineering tools] Machining of relatively small and soft materials compared with heavy engineering at the beginning of my career was fairly quiet. In the laboratories - movement modification and installation of furnaces, Deionised Water System, Laser Micro-machining station, Atmospheric Pressure machine and a Plasma Chemical Vapour Deposition (APCVD) Enhanced (PECVD) machine. The above equipment in the laboratories was fairly small and quiet compared with production factories.
2005:
Position:
EOS Fire Control Systems, Queanbeyan NSW
Production Worker, Technical Officer 6
Job Function: Dismantling, rebuilding and testing of 27x zoom lenses. Quiet work environment.
2006-2007
Position:
Job Function:
Australian National University, Canberra ACT
Centre for Sustainable Energy Systems
Technical Officer ANUO5
Same as with period 2001 - 2002
Education and other activities to try and get back into the work force.
200-2001:
Canberra Institute of Technology (CIT), Bruce Adv Dip. Conservation Ecology (not completed)
2003-2004:
Full time studies Canberra Institute of Technology (CIT), Bruce Advanced Diploma Mechanical Engineering.
In Canberra and Perth I approached CRS Australia (CRSA) for assistance on getting back into the work force. The approaches to CRSA did not prove successful.
“Specific incident^) involving your “sensori neural bearing loss (bilateral)” condition
I believe there has been no “Specific incidents involving my “sensorineural hearing loss (bilateral)” condition to make it worse. As I am not a Doctor, I feel my hearing has gradually deteriorated over a long period of time due to the initial industrial damage. As can be seen by my above employment since 1982, the work environment has been quiet.
I have retired. On the 4/5/2014, which is also the claim date, 1 applied to the Commonwealth Superannuation Scheme (CSS) for a Deferred Benefit on Medical Grounds. I received a letter from CSS dated 26/8/2010 that I am Totally and Permanently Incapacitated and as such entitled to a Deferred Invalidity Benefit. The Deferred Invalidity Benefit and Adjustments commenced on the 4/10/2010.
Activities in retirement:
Cycling, cars, keeping fit, family life, ongoing study, energy efficient homes and associated technologies. Magazines, email, meetings, specialist guest speakers and presentations, classes in Lip Reading and Sign Language Conversation and socialising within these groups.
Medical evidence
Report from National acoustic laboratories for loss of hearing dated 18 March 1982 (T11 at 29)
On the evidence Mr den Hartog’s hearing loss was first documented in a joint report prepared by Dr Vance, ENT Specialist and Mr Whitehead, Audiologist, dated 18 March 1982 (the “1982 Report”), which reads as follows:
PART A - MEDICAL REPORT
QUESTIONS:
1.From what condition (or conditions) affecting his ears and/or his hearing does the employee suffer (e.g., effects of noise trauma, otosclerosis, otitis media, etc.)?
Sensori-neural hearing loss of long standing, possibly congenital with some deterioration since employment
2.Answering separately from each condition, on the balance of probabilities (as distinct from possibilities) has the condition resulted from -
(a)Causation - A particular event or occurrence in the course of, or attributable to, the employment by the Australian Government or the contraction of a disease to which that employment was a contributing factor?
(b)Aggravation etc. - The aggravation, acceleration or recurrence of a pre-existing injury or disease due to a particular event or occurrence in the course of, or attributable to, the employment by the Australian Government or to which that employment was a contributing factor?
Comparison of pre-employment and currant audiogram show his hearing loss to have deteriorated slightly since commencement of employment by the Austral Government
(c)Progression – The natural progression of some pre-existing or underlying condition not associated with the employment by the Australian Government?
(d) Other factor - Some other factor and, if so, what is that factor?
3.If you have answered Question 2(a) or 2(b) in the affirmative, what was the particular event or occurrence that caused or aggravated the condition or the employment factor which contributed to the contraction or aggravation, etc., of the condition? (Note that this factor could be some characteristic of any work the employee performed for the Australian Government or the conditions under which such work was performed).
Noise exposure at the dockyards aggravated a pre-existing hearing loss
4. What form of medical or surgical treatment, if any, is indicated?
(A separate answer for each condition please)
Nil nil
5.Have any of the conditions to which you have referred in your answers to the foregoing resulted in increases in hearing levels, as shown on the audiogram on page 1, and, if so, are these increases permanent?
(Separate answers for each condition please).
Yes Yes
6.Is the employee suffering from a loss of hearing in terms of the N.A.L. procedure for determining percent loss of hearing?
(Please answer YES or NO) . YES..
PART B - ASSESSMENT OF HEARING:LOSS
QUESTIONS:
1. What is the employee’s total percent loss of hearing? 38.7%
(To be answered by N.A.L. Audiologist). Compensable loss 13.11%
…
[emphasis added]
Audiological hearing assessments
The Tribunal also had before it numerous audiological hearing assessments in relation to Mr den Hartog’s hearing. These assessments were as follows:
(a)on 11 August 2004, Mr den Hartog had his hearing tested by Audiologist, Jeanette Jacobs of Australian Hearing. Ms Jacob’s assessment of Mr den Hartog’s audiogram was that he has a moderately-severe to severe sensorineural hearing loss bilaterally;
(b)on 1 June 2006, Mr den Hartog had his hearing tested by Audiologist, Mandy Nyhot of the Brindabella Hearing Centre. Ms Nyhot’s assessment was that Mr den Hartog’s audiogram shows a moderate to severe mixed loss bilaterally;
(c)on 18 June 2012, Mr den Hartog had his hearing tested by Audiologist, Varsha Mathew of Lions Hearing Clinic. Ms Mathew’s assessment was that Mr den Hartog’s audiogram shows moderate to severe sensorineural hearing loss up to 4kHz then sloping to severe to profound high frequency loss bilaterally; and
(d)on 10 March 2016, Mr den Hartog had a full audiological assessment by Ms Langille, Audiologist, who provided a clinical audiology report in support of her assessment (T33 at 83). This report stated that Mr den Hartog has a permanent bilateral sensorineural hearing loss, with the right ear showing a profound loss and the left ear showing a severe to profound hearing loss. The report confirmed Mr den Hartog had a cochlear implant for his right ear and a high powered hearing aid for his left which are not meant to be worn ‘24/7’. As there are times Mr den Hartog is unaided, specific alerting system devices (the Appliances) were recommended for Mr den Hartog.
Letter from Dr Atlas to Dr Ishak dated 12 February 2014 (R6, Annexure A)
Mr den Hartog was referred to Otolaryngologist, Dr Atlas, by General Practitioner, Dr Ishak and on 12 February 2014, Dr Atlas wrote a letter to Dr Ishak detailing the results of his examination of Mr den Hartog’s hearing loss. The letter reads, relevantly, as follows:
Diagnosis:1. Bilateral progressive severe to profound hearing loss – probably hereditary
I appreciate you referring Jacob Den Hartog who is a 58 year old man with a long history of bilateral progressive hearing loss beginning in his teenage life. He has no vertigo or tinnitus. He was first fitted with hearing aids in 1982 and has consistently worn hearing aids since that time. He feels that the left ear is the better hearing ear.
He has co-morbidities including epilepsy, diabetes, hypertension and hypercholesterolemia.
The otological and neurotological examination was essentially normal. His pure tone audiogram revealed a severe sensorineural hearing loss on the left and a severe to profound sensorineural hearing loss on the right. Aided speech perception testing with sentences and words in quiet revealed very poor speech perception bilaterally. He met the audiological criteria for cochlear implantation in both ears.
…
[emphasis added]
Report of Professor Atlas dated 26 March 2015 (T29 at 66)
This report, relevantly, reads as follows:
I have been requested to provide a medical report from Mr Jacob Adrianus Den Hartog but no written permission has been provided by your organisation. This is a surprising omission for an organisation handling healthcare matters.
Following provision of written permission from the patient to provide medical information, I provided the following report.
1. Right cochlear implantation March 2014;
2.The cause of Mr Den Hartog's progressive sensorineural hearing loss is unsure although a hereditary cause is suspected. Hereditary inner ear dysplasia and hearing loss maybe worsened by exposure to industrial noise;
3.The previous treatments for his sensorineural hearing loss were the use of hearing aids;
4.Cochlear implantation was carried out in March 2014, Testing indicates a significant improvement in speech understanding following implantation;
5. See attached
6.Cochlear implantation requires detailed rehabilitation which has been carried out at the Ear Science Institute Australia Cochlear Implant Centre. Details of the rehabilitation, dates and times can be provided by the patient.
…
Report of Professor McManus (Consultant ENT Surgeon) dated 15 July 2015 (T31 at 73)
Mr den Hartog was referred to Professor McManus (Consultant ENT Surgeon) in July 2015. Professor McManus’ report reads as follows:
Thank you for referring Mr Jacob Adrianus Den-Hartog for ENT assessment Based on Mr Den-Hartog’s medical condition as specified in your referral, I confirm that my specialty is appropriate for the conduct of this assessment.
Having reviewed the available file data and the comprehensive audiology test results, interviewed and examined Mr Den-Hartog, I submit a detailed medical report in answer to your request.
I obtained the following information from my interview with Mr Den-Hartog (unless otherwise specified).
…
BACKGROUND:
Country of Birth: Australia
MEDICAL EVALUATION:
Past Medical History:
Mr Den-Hartog reported he first became aware of hearing Impairment at the age of 17 when hearing test identified nerve deafness.
Noise - Apart from Work:
Nil reported.
Firearms Exposure:
Nil.
Head Injury:
Mr Den-Hartog reported he had a bicycle accident in 2008 when he had a brief period of loss of consciousness.
Ear Disease or Injury:
Hearing loss progressive since first diagnosed at the age of 17,
Medical/Surgical Treatment:
Right cochlear implant by Professor Marcus Atlas.
Other Previous Illnesses:
Epilepsy, diabetes and fatty liver disease.
Family History:
Nil relevant.
Employment History:
Mr Den-Hartog reported he completed an apprenticeship as a fitter and turner before commencing work in the Naval dockyards in Melbourne.
Worksite Noise Levels:
Unknown,
Screening Audiometry:
The records provided included audiograms carried out in 1982, 2004 and 2012.
Medical History including Mechanism of Injury Alleged & Subsequent Progress:
I note Professor Atlas’ report indicating his progressive sensorineural hearing loss is uncertain although a hereditary cause is suspected. He comments that hearing loss may be worsened by exposure to industrial noise but on the history obtained it would appear his hearing impairment was first identified prior to exposure to noise.
Deafness First Noted:
Age 17.
Ear Infections:
As a child.
Tinnitus:
Nil.
Giddiness or Headaches:
Nil.
Ototoxic Drugs:
Nil.
Noxious Fumes:
Nil.
Other ENT symptoms:
Nil.
Present Medication:
He takes tablets for epilepsy and diabetes.
Trouble with TV/Radio:
Yes.
Trouble with Telephone:
He does use a speaker phone and has experienced significant improvement following his cochlear implant.
Smoking/Alcohol:
Nil.
Other Concurrent Illnesses:
Nil relevant.
Current Symptoms:
Profound loss of hearing.
Clinical Examination:
This showed he has had a right cochlear implant and uses a standard hearing aid in his left ear.
Investigations:
Detailed audiograms have been provided of previous assessments.
Audiometry - Performed according to Australian Standard AS 1269
Performed by Ear Science Institute, Audiologist, Ronel Chester- Browne Date:24 April 2015 Comments: Hz
500
1000
1500
2000
3000
4000
6000
8000
Left
85
80
80
20
20
20
70
90
Right
25
25
20
75
75
70
20
20
ASSESSMENT AND SUMMARY:
Diagnosis:
Profound bilateral sensorineural hearing loss.
RECOMMENDATION:
Treatment:
Mr Den-Hartog has had a right cochlear implant carried out by Professor Marcus Atlas with improvement in his hearing.
Fitness for Work:
I consider Mr Den-Hartog’s hearing impairment is severe and would significantly limit his ability to work as a fitter and turner.
COMMENT:
In response to the specific questions set out in your correspondence dated 11 June 2015,1 advise:
Medical Questions
1. History provided and obtained during the examination.
Mr den-Hartog reported he first became aware of hearing impairment at the age of 17, He reported progressive increasing hearing loss following early diagnosis culminating in a cochlear implant.
2.From what condition affecting the ears/hearing loss does Mr Den Hartog suffer from?
Mr Den-Hartog has severe progressive bilateral sensorineural hearing impairment with a most likely genetic cause.
3.When did Mr Den-Hartog first observe his symptoms affecting the ears/hearing loss?
At the age of 17.
4.Are you able to, in your professional opinion, estimate a date when Mr Den- Hartog first suffered impairment as a result of any hearing Joss associated with his Commonwealth employment? If yes, please provide a date.
On the information provided l have been unable to estimate whether Mr Den-Hartog has suffered impairment as a result of his Commonwealth employment. I note Professor Atlas' report dated 26 March 2015 indicates his hearing loss was probably hereditary inner ear dysplasia. I further note he indicates hearing loss may be worsened by exposure to industrial noise. On the evidence provided there is little to indicate that his severe hearing loss has, in part, resulted from his work as there is no information as to the levels of noise to which he may have been exposed during his working career. In my opinion he most likely suffered from a genetic disorder causing progressive profound sensorineural hearing loss.
5.In respect of the condition affecting the ears/hearing loss is the condition/hearing loss episodic, accumulative and irreversible, progressive or transitory?
Please see above.
6.Details of any relevant history, pre-existing or underlying condition suffered by Mr Den-Hartog.
On the information provided, I am in agreement with Professor Atlas' comment that it is likely he has a hereditary genetic disorder causing his progressive hearing impairment.
7.Do you consider the condition affecting Mr Den-Hartog’s ears/hearing loss is related to or due to a pre-existing or underlying condition? If so please provide details.
On the information provided I consider his profound loss of hearing necessitating a cochlear implantation has not been a result of his employment and is more likely a hereditary genetic disorder and for this reason I consider Comcare should not be liable for a cochlear implant.
8.Comcare seeks your medical opinion in relation to the notion that initial assessment for Cochlear Implantation is a realistic compensable proposition that Comcare should be liable for.
Mr Den-Hartog has had a right cochlear implant. As noted in my response to Question 7, I consider Comcare should not be liable for a cochlear implant.
9.If you consider it work related (thus compensable) is cochlear implant reasonable?
In my opinion I do not consider his hearing loss is work related.
10.Comcare has funded hearing aids previously, are aids able to compensate for his hearing adequately? If cochlear implant would be better, how much better than hearing aids?
Mr Den-Hartog has used bilateral hearing aids for most of his adult life, he has had a right cochlear implant performed which has given him some improved ability in following speech.
11.Given the history provided are there any alternatives to that of Cochlear Implantation that could be explored?
In my opinion there were no alternatives to a right cochlear implant that could have been explored, he had worn bilateral aids with limited help over many years.
Employment Relationship
12.In your opinion what is the relationship between Mr Den-Hartog’s hearing loss and his employment with Department of Defence? And if so please specify what you consider to be the employment factors:
a.In your opinion, do you consider Mr Den-Hartog’s hearing loss was caused or contributed to by factors during the scope of his Commonwealth employment? If so, please provide details including a clinical explanation to support your opinion.
In my opinion Mr Den-Hartog's hearing loss was not caused by his Commonwealth employment and in my opinion his employment is most unlikely to have contributed to any significant degree.
b.Was Mr Den-Hartog exposed to any factors outside of his Commonwealth employment that caused or contributed to his hearing loss?
I am unaware of Mr Den-Hartog being exposed to any factors outside Commonwealth employment that caused or contributed to his hearing loss. As indicated previously it seems likely his profound loss of hearing is hereditary and genetic in origin.
13.If the loss of hearing is only partly related to Mr Den-Hartog’s employment with Department of Defence, are you able to apportion the level of hearing loss related to Mr Den-Hartog’s employment with Department of Defence? Please provide details.
Please see above.
Supplementary Report from Professor McManus dated 11 January 2017 (Exhibit R3)
This report reads as follows:
I have noted your letter dated 13 December 2016 and respond to the questions detailed in your letter, item 3.1.
3.1 The current condition
(a) Can you confirm the condition the Applicant suffers from?
In agreement with the report from Professor Marcus Atlas, I advise Mr Den-Hartog has most likely a hereditary inner ear dysplasia causing his profound bilateral progressive sensorineural hearing loss.
(b)What is the aetiology of the Applicant’s condition?
This condition is idiopathic (unknown cause), possibly hereditary.
(c)On page 5 of your report, we note that you consider the Applicant has ‘severe progressive bilateral sensorineural hearing impairment with a most likely genetic cause’. Can you expand and describe the relevant pre-existing or non-work related medical history or condition and the significance of the pre-existing condition to the ‘aggravation of sensori-neural hearing loss’?
Based on the information provided and my consultation with Mr Den-Hartog, I note Mr Den-Hartog first noted progressive hearing impairment at the age of 17. There have been no records provided to indicate the level of hearing loss he experienced at that time and more importantly I have been provided with no medical records of his hearing confirmed with audiometry prior to his enlistment in the Navy.
I have noted that Professor Atlas has made a comment that exposure to excessive industrial noise may worsen his underlying hearing loss due to hereditary inner ear dysplasia.
(d)Would Jacob den Hartog have developed the current condition as a natural progression of a pre-existing condition irrespective of his employment?
In my opinion and based on the records provided I consider Mr Den-Hartog would likely to have experienced a natural progression of the underlying hereditary inner ear dysplasia and I am unable to indicate whether exposure to excessive noise would have caused further hearing loss or to what degree.
I further note that hearing tests carried out during his military service indicated progressive loss of hearing in the lower frequencies but little change in the hearing levels at 4000 cps and above. Noise-induced hearing loss characteristically begins at a frequency of 4000 cps and characteristically returned to a more normal level in the higher frequencies of 6000 cps and 8000 cps. The audiograms provided indicate Mr Den-Hartog’s hearing loss were predominantly in the lower frequencies consistent with probable inner ear dysplasia and the hearing that was in the higher frequencies, 4000 cps and above were much better. This would indicate it is unlikely that he was exposed to noise damaging levels of noise during his military service.
(e)Have the effects of a pre-existing or non-work-related condition overtaken the effects of the accepted condition of 'aggravation of a sensorineural hearing loss’?
In my opinion I consider Mr Den-Hartog’s progressive hearing impairment was unrelated to his military service, I note in your letter item (e) that Mr Den-Hartog has an accepted condition of “aggravation of sensorineural hearing loss”. I would comment that I have seen no evidence to indicate he has had aggravation of a sensorineural hearing loss due to his military service and Professor Atlas’ report indicates that he thought his hearing loss may be worsened by exposure to industrial noise.
(f)What is your prognosis of the Applicant’s condition?
Mr Den-Hartog has had a successful cochlear implant with significant improvement in his hearing ability. I would expect this improvement to be maintained in the operated year but it is possible the hearing loss in his left ear may progress with time.
3.2 Contribution from employment
(a)You note in your report that ‘there is little to indicate that his severe hearing loss has, in part, resulted from work as there is no information as to the levels of noise to which he may have been exposed during his working career’. Having regard to all the current material, do you still consider that the Applicant’s condition is unlikely to have resulted from his working career? Please provide reasons, if appropriate.
From the information provided I confirm my previous advice that I consider Mr Den-Hartog’s hearing impairment was due to an idiopathic progressive bilateral sensorineural hearing impairment with a most likely genetic cause. From the information provided I have found no evidence to suggest that his progressive hearing impairment has been aggravated by exposure to noise.
3.3 Treatment
(a)The Applicant has made a claim for the following medical expenses:-
(i)Cochlear implant surgery (already undertaken);
(ii)Ear mapping;
(iii) Brooks smoke alarm wireless battery powered;
(iv)Brooks Vibralarm bedside strobe and pillow shaker;
(v)Wireless door chime;
(vi)Alarm clock Bellman Pro
As stated above I have not been provided with any detailed evidence of the level of noise to which he may have been exposed and the audiograms that have been provided do not show evidence of noise-induced hearing impairment (maximal loss occurring at 4000 cps).
(b)In your opinion, do you consider that the cochlear implant surgery was reasonable and appropriate treatment in relation to the Applicant’s condition? If so, what benefit do you expect that the Applicant will receive from such treatment?
You enquire whether I consider the cochlear implant surgery was reasonable and appropriate treatment, yes, I believe that cochlear implant was appropriate for Mr Den-Hartog’s hearing impairment.
(c)Do you consider that the ear mapping was reasonable and appropriate treatment in relation to the Applicant’s condition? If so, what benefit do you expect that the Applicant will receive from such treatment?
Yes, I consider the ear mapping to be a reasonable and appropriate treatment for Mr Den-Hartog’s progressive hearing loss.
(d)Do you consider that the ‘aid appliances’ as described from 3.3(a)(iii) - (iv) is reasonable and appropriate treatment in relation to the Applicant’s condition?
Yes, I do agree.
3.4 Other factors
(a)Should the Applicant be examined by a practitioner in any other field of medicine? If so, which?
No, I do not believe Mr Den-Hartog should be examined by further medical practitioners, he has been extensively investigated by Professor Atlas who is recognised as the leading otologist in WA and one of the leading specialists in Australia.
(b)Are there any other comments you wish to make?
I acknowledge this has been a difficult case to assess particularly because of the lack of detailed information of his medical condition during his military service.
ORAL EVIDENCE
As per paragraph 32 above, the Tribunal heard oral evidence from:
· Professor McManus who was then thoroughly cross examined by Mrs den Hartog; and
· Mr den Hartog who was then cross examined by counsel for the Respondent.
Mr den Hartog
Relevantly, the Tribunal notes that the oral evidence provided by Mr den Hartog was primarily to confirm the accuracy of his documentation before the Tribunal.
Professor McManus
At the hearing, oral evidence was given by Professor McManus. Professor McManus was examined by Mr Burgess, relevantly as follows:
MR BURGESS: In the 2017 report, I think you made a comment of it on page 3 in response to question (e) where you say that:
I would comment that I have seen no evidence to indicate that he has had aggravation of sensory neural hearing loss due to his Defence employment and Professor Atlas’ report indicates that he thought his hearing loss - - -
And then in italics:
- - - may be worsened by exposure to industrial noise.
Can I ask you to explain the emphasis on that?
PROFESSOR MCMANUS: The word ‘may’?
MR BURGESS: Yes.
PROFESSOR MCMANUS: As I said earlier, there is no scientific evidence to indicate, or prove, that exposure to excessive noise does make hereditary dysplasia worse. It’s like saying speeding may cause an accident. It is not saying it has caused t, it is just a suggestion and that came out of an article, which I looked up this morning actually, and it was an article that come from a textbook on Human Malformations and Related Abnormalities and it stated:
Minimising exposure to loud noise is also suggested.
I have found nothing in the scientific literature to indicate that excessive noise does aggravate or worsen hereditary dysplasia.
(Transcript at page 22)
When shown the Audiogram from the 1982 Report and asked to put it into context, Professor McManus stated (Transcript at page 21):
MR BURGESS: Can I take you then to the actual audiogram from 1982? If the Professor can be shown the T documents at page 29 Please and you will have had this in your brief of material. It’s the 1982 audiogram?
PROFESSOR MCMANUS: Yes, okay
MR BURGESS: And if you put that in context at the end of that period of employment with Defence in the ‘70s through to 1981?
PROFESSOR MCMANUS: When I look at this audiogram, it shows there is a symmetrical bilateral loss of hearing in the lower frequencies commencing at 250 cycles per second and going to 2000 and then it improves up to normal levels at 8000 cycles. That is a pattern of hearing loss that one would expect to see in a dysplasia, or hereditary dysplasia.
It is quite the reverse to the audiogram one would expect to see with noise induced hearing loss. With noise induced hearing loss, the hearing levels are normal at the lower frequencies from 5000, 2000, 3000 and dips down at 4000 and then improves again at six and eight thousand.
So it’s a very characteristic picture of noise induced hearing loss, which is quite distinct from this one.
During the hearing, Mr den Hartog tendered three academic papers and requested that Professor McManus provide an opinion in relation to their conclusions. The Tribunal notes that these documents were not tendered prior to the hearing and that Professor McManus was asked to review them at very short notice. Despite this, Professor McManus agreed to provide a very preliminary view in relation to them and the Tribunal thanks him for his assistance.
Relevantly, Professor McManus was referred to those academic papers and asked his opinion. He, relevantly, responded as follows:
PROFESSOR MCMANUS: These articles - the first one is from 1998, and that was a noise induced hearing loss, and there’s nothing in that to suggest that noise is a factor in worsening hereditary dysplasia hearing. The second one is different.
…
PROFESSOR MCMANUS: Okay, the first article only deals with noise induced hearing loss, which is a very well-known subject. The second one is a model for casting the prevalence of hearing loss and, again, it doesn’t deal with dysplasia and the third one is cochlear nerve degeneration after temporary noise induced hearing loss. This is - I’ll have to read through this in more detail to comment but it does not appear to deal with the specific problem we are now faced with. I think the essential thing is, on the information that we have there’s nothing to indicate that he has noise induced hearing loss. Noise induced hearing loss, as I said earlier, characteristically has normal hearing in the lower frequencies and dips to 4000 cycles and then improves in the high frequencies above that. Well, that is the reverse. Mr den Hartog has got significant sensory or nerve deafness in the lower frequencies improving to normal in the higher frequencies and that’s quite contrary to noise induced hearing loss. I think the real issue is, does excessive noise make hereditary dysplasia worse? I haven’t been able to find nothing in the literature to indicate that it does and, apart from Professor Atlas’ comment that it may be prudent to avoid it, there’s no evidence, scientific evidence, that noise does make hereditary dysplasia worse.
DEPUTY PRESIDENT: But, in any event, if I understand what you’re saying, Professor, you’re saying that in any event there wasn’t excessive noise?
PROFESSOR MCMANUS: We don’t know what levels of noise he’s been exposed to. The information I have received has not indicated the noise to which he may have been exposed in the dockyards years ago and the other thing with noise induced hearing loss is that it doesn’t progress after cessation of exposure to noise.
(Transcript at page 23)
CONSIDERATION
Mr den Hartog’s hearing loss condition
It is not in dispute that Mr den Hartog suffers from a hearing loss condition and on the basis of the relevant medical evidence before it – namely the report from National Acoustic Laboratories dated 18 March 1982 (see paragraph 38 above), Dr Atlas’ letter to Dr Ishak dated 12 February 2014 (see paragraph 43 above), the report of Professor Atlas dated 26 March 2015 (see paragraph 44 above), the report of Professor McManus dated 15 July 2015 (see paragraph 46 above) and Professor McManus’ supplementary report dated 11 January 2017 (see paragraph 47 above) – the Tribunal so finds.
Based on the medical evidence referred to above, in particular the reports of Professor McManus, the Tribunal also finds that the appropriate diagnosis or description of Mr den Hartog’s hearing loss condition is “bilateral sensorineural hearing loss” (the “Hearing Loss Condition”).
Is the Hearing Loss Condition an ‘injury’, or a ‘disease’ for the purposes of the 1971 Act?
The Hearing Loss Condition is either an “injury” or a “disease”, as defined in section 5(1) of the 1971 Act. As outlined above, “disease” is defined in section 5 of the 1971 Act as ‘any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development’.
It is not in contention that the Hearing Loss Condition satisfies the descriptor of an ailment and therefore a ‘disease’ under section 5(1) of the 1971 Act and, accordingly, the Tribunal did not need to make a determination in this regard. The question that flows from this is whether it is an injury.
Does the Hearing Loss Condition constitute a “personal injury” within the meaning of section 29 of the 1971 Act?
The Commonwealth initially accepted liability to pay compensation, in accordance with the provisions of sections 29 and 39(9) of the 1971 Act, for ‘aggravation of sensori-neural hearing loss’ in response to the 1982 Report (Exhibit R4).
Under section 29(1) of the 1971 Act, if an employee suffers an aggravation of a disease and their employment with the Commonwealth is a contributing factor to the aggravation of the disease then the provisions of section 29(2) have effect.
Under section 29(2) of the 1971 Act, if a loss to the employee of a kind referred to in section 39 (which includes partial loss of hearing) results from the aggravation of the disease then that aggravation shall be deemed to be a ‘personal injury’ to the employee arising out of the employment of the employee by the Commonwealth.
This Tribunal must determine whether Mr den Hartog’s employment with the Agency was ‘a contributing factor to the contraction of the disease or to the aggravation …’
Did Mr den Hartog’s ‘personal injury’ arise out of the employment with the Agency?
As per the 1982 Report, referred to in detail at paragraph 37 above, a comparison of Mr den Hartog’s pre-employment and then current audiograms showed his hearing loss had deteriorated slightly since he had commenced employment with the Agency.
The Tribunal notes that authors of the 1982 Report appear to have reached their conclusions on the basis of an identified deterioration of hearing loss without an explanation of the frequencies of hearing loss sustained and whether it was likely that Mr den Hartog’s underlying progressive hearing loss deteriorated in accordance with the natural history of the Hearing Loss Condition irrespective of the claimed exposure to noise. This is perhaps to be expected given the date at which the report was prepared.
The only aspects of Mr den Hartog’s employment with the Agency, suggested by him as being possible causes of aggravation to the Hearing Loss Condition which involved exposure to noise, were his proximity to machinery and the use of his tools.
The Tribunal notes Professor McManus’ evidence that the pattern of Mr den Hartog’s Hearing Loss Condition is not indicative of noise-induced hearing loss but that it is “a pattern of hearing loss that one would expect to see in a dysplasia, or hereditary dysplasia”.
The Tribunal further notes the evidence of Professor McManus’ in his reports of 15 July 2015 and 11 January 2017. The Tribunal notes, in particular, the following:
(a)Mr den Hartog suffers from a genetic disorder which has caused the Hearing Loss Condition and that this condition was not caused by his employment with the Agency;
(b)Mr den Hartog has ‘profound loss of hearing necessitating a cochlear implant has not been a result of his employment and is more likely a hereditary genetic disorder’;
(c)the aetiology of Mr den Hartog’s condition is ‘due to an idiopathic progressive bilateral sensorineural hearing impairment with a most likely genetic cause’, and that Mr den Hartog ‘would likely to have experienced a natural progression of the underlying hereditary inner ear dysplasia’; and
(d)it was ‘unlikely that Mr den Hartog was exposed to noise damaging levels of noise during his military service’.
The Tribunal notes that Professor McManus is of the firm view that Mr den Hartog’s present levels of hearing loss are not due to any noise exposure.
The Tribunal accepts Professor McManus’ evidence. Professor McManus accessed and relied on the most up to date medical technology and literature and offered evidence that was clear, accessible and entirely credible.
On the basis of Professor McManus’ reports of 15 July 2015 and 11 January 2017 together with his oral evidence, the Tribunal is of the opinion that it is likely that Mr den Hartog was suffering from some sensorineural hearing loss, of a hereditary cause, prior to his employment with the Agency.
Further, the Tribunal is of the opinion that the Hearing Loss Condition is entirely attributable to that pre-existing idiopathic condition and that any hearing loss after his commencement of employment with the Agency, including the 13.17% hearing loss assessed in the 1982 Report, was unrelated to his employment with the Agency.
There is simply no medical evidence before the Tribunal to support a finding that Mr den Hartog was exposed to the levels of noise required to cause noise induced hearing loss. All of the medical evidence, in the form of the audiograms, support the conclusions drawn by Professor McManus.
Accordingly, having regard to the evidence before it, the Tribunal is not satisfied that the Hearing Loss Condition arose out of or in the course of Mr den Hartog’s employment with the Agency.
CONCLUSION
Mr den Hartog’s entitlement to compensation under section 16 of the SRC Act in respect of the Hearing Loss Condition depends, pursuant to s 124 of the SRC Act, on whether he was entitled to receive compensation in respect of that condition under (relevantly) the 1971 Act.
Having regard to the evidence before the Tribunal, and to the above discussion, the Tribunal concludes that compensation is not payable to Mr den Hartog in relation to his Hearing Loss Condition because it is not satisfied that the condition was a personal injury arising out of or in the course of his employment with the Agency.
The Tribunal concludes, therefore, that Comcare is not liable, to pay compensation to Mr den Hartog in respect of the Hearing Loss Condition.
DECISION
For the above reasons, the decisions under review are affirmed.
I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
................[sgd]........................................................
Administrative Assistant
Dated: 28 July 2017
Date of hearing: 13 June 2017 Representative of the Applicant: Mrs den Hartog Representative of the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore
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