Den Hartog and Comcare (Compensation)

This matter concerned an appeal by Mr den Hartog against decisions by Comcare to revoke its acceptance of liability for his hearing loss and associated treatments. The dispute centred on whether Mr den Hartog's employment at the Naval dockyards contributed to his hearing impairment, or if his condition was a natural progression of a pre-existing, likely hereditary, condition. The Administrative Appeals Tribunal (the Tribunal) was required to determine Mr den Hartog's eligibility for compensation under the relevant legislation, considering both the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) and its predecessor, the *Compensation (Commonwealth Employees) Act 1971* (1971 Act).

The primary legal issue before the Tribunal was whether Comcare was liable to pay Mr den Hartog compensation for a cochlear implant, ear mapping, and various assistive appliances. To resolve this, the Tribunal had to ascertain if Mr den Hartog suffered an injury or an aggravation of a pre-existing condition that arose out of his employment with the Naval dockyards, as defined under the 1971 Act. This required a comprehensive review of medical evidence spanning approximately 35 years, including audiograms and specialist reports, to determine the aetiology and progression of his hearing loss.

The Tribunal's reasoning focused on the medical evidence, particularly the reports from Professor McManus. Professor McManus concluded that Mr den Hartog's profound, progressive, bilateral sensorineural hearing loss was most likely due to a hereditary inner ear dysplasia, first noted at age 17, prior to his naval service. Crucially, the audiometry patterns did not exhibit the characteristic signs of noise-induced hearing loss, which typically begins at higher frequencies (around 4000 cps) and improves at even higher frequencies. Instead, Mr den Hartog's loss was predominantly in the lower frequencies, consistent with inner ear dysplasia. While Mr den Hartog provided a letter detailing exposure to industrial noise and his use of earmuffs, Professor McManus found no evidence that this exposure had aggravated his underlying condition or caused further hearing loss to a compensable degree. The Tribunal considered the principle from *Telstra Corporation Limited v Hannaford* (2006) 151 FCR 253, that a claimant may not be entitled to compensation if they never suffered an injury or if their current condition cannot be said to arise from their employment.

The Tribunal affirmed Comcare's decisions, finding that Mr den Hartog had not established that his hearing loss or its aggravation arose out of his employment. Consequently, Comcare was not liable to pay compensation for the cochlear implant surgery, ear mapping, or the assistive appliances.