Dimovski v Rail Infrastructure Corporation

[2007] NSWADT 100

CITATION:	Dimovski v Rail Infrastructure Corporation [2007] NSWADT 100
DIVISION:	General Division
PARTIES:	APPLICANT Steve Dimovski RESPONDENT Rail Infrastructure Corporation
FILE NUMBER:	063026
HEARING DATES:	28 February 2007
SUBMISSIONS CLOSED:	28 February 2007
DATE OF DECISION:	1 May 2007
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Beesley v Commissioner of Police [2000] NSWADT 52 Chapman v NSW Police [2004] NSWADT 35 Miriani v NSW Police [2005] NSWADT 187
REPRESENTATION:	APPLICANT In person RESPONDENT S Thompson, counsel
ORDERS:	The respondent's decision under review is affirmed

1 These proceedings were commenced in this Tribunal by the applicant following an application that he had made to the respondent for the release of documents under the Freedom of Information Act 1989 (the FOI Act). The respondent in fact released all the documents that it had that fell within the applicant’s request with the consequence that in these proceedings there are no documents over which the respondent claims exemption. Whilst access to particular documents were in fact refused by reason that they fell within the legal professional privilege exemption, the applicant does not press for these documents.

2 The applicant however, putting it generally, questions the adequacy of the searches that the respondent has undertaken in order to satisfy his application under the Act. He argues that there are circumstances which show that further searches ought to be made. If the proceedings have otherwise been commenced within jurisdiction, this is a proper issue for the Tribunal to consider notwithstanding the absence of any documents over which an Agency claims exemption: there is an established line of authority to this effect in this Tribunal which ought to be followed (Beesley v Commissioner of Police [2000] NSWADT 52 (upheld on appeal); Chapman v NSW Police [2004] NSWADT 35 and Miriani v NSW Police [2005] NSWADT 187). In such circumstances the Tribunal is required to consider whether the evidence shows that there are reasonable grounds for believing that there are relevant documents (which have not been located and released) that did exist, or which should have existed, and which should still be in the possession of the Agency (Chapman v NSW Police op cit). If the evidence does show that this could be the case then the question becomes whether the Agency has conducted all searches that are reasonably required in the circumstances. Whether the searches that have been conducted are sufficient in this sense will depend upon the circumstances of the case at hand (Miriani v NSW Police op cit).

3 Both parties have adduced considerable amounts of written materials in the proceedings, all of which were admitted into evidence, subject to any objections as to relevance that may arise during the course of the hearing. This aspect of the evidence was not revisited as the parties were able to narrow the factual issues as the hearing progressed.

4 However, the background circumstances revealed by these materials are still of relevance as they indicate the nature of the relationship between the parties at material times and they therefore provide some insight into the respondent’s possession of files, records and documents that the applicant asserts did in fact exist at some time and which, he further asserts, ought to be still in the possession of the respondent. This background is as follows. At material times the applicant was employed by statutory corporations that preceded the present respondent: they were The State Rail Authority and Rail Services Australia. He suffered injuries during the course of his employment which in due course gave rise to claims by the applicant for compensation. He engaged solicitors for this purpose. The applicant’s evidence suggests that he suffered injuries firstly to his legs, knees and his lower back on what appears to be separate occasions during the period 1994 to 1998 and secondly to his hearing, possibly in the year 2000 (the proceedings are said to have been commenced in that year with the injuries occurring some time earlier). The applicant alleges that he lodged worker’s compensation claims with respect to all these injuries and that these claims gave rise to a series of legal proceedings, some of which were struck out, it is alleged, but recommenced at later stages. The applicant engaged solicitors to press his several claims and from time to time he changed from one firm of solicitors to another. The materials adduced by the applicant identified 10 sets of legal proceedings and an appeal to the Court of Appeal, all of which were related to the applicant’s claims for compensation although some proceedings may have concerned claims made by another person who has the same name as the applicant. The evidence does not permit any clear findings on this aspect, but it is sufficiently clear that some of these proceedings, at least, were commenced by the applicant in relation to his injuries. The applicant accepts that a number of his proceedings were discontinued or struck out, albeit re-commenced by bringing fresh proceedings (as shown by exhibit A8 statement by the applicant dated 18.03.06 for example). The evidence lacks precision on this aspect and therefore precise detailed findings cannot be made beyond what has just been set out, and what appears below, in these reasons.

5 The respondent’s evidence is that the relevant statutory authority at the time only dealt with a single claim for worker’s compensation which encompassed injuries to the applicant’s legs and back, but not his deafness claim. The evidence shows that the applicant commenced the determinative legal proceedings concerning his work related injuries to his back and legs in September 2001 and that these proceedings culminated in an award in the applicant’s favour in 2002 and then later in 2005 following an appeal to the Court of Appeal (exhibit R2 annexure F). It is not necessary for the Tribunal to make detailed factual findings as to everything that occurred during the course of the applicant’s compensation claims in the early stages, save to the extent that findings are made hereunder. The significance of this early evidence is that it suggests that the respondent’s searches of the records it held should have taken into account, and accommodated, the possibility of several claims for different injuries in relation to which different firms of solicitors were engaged together with the possibility that several sets of legal proceedings were commenced, some being discontinued in one fashion or another.

6 It was common ground between the parties that the applicant’s compensation matters concerning his back and leg injuries had been finalised in a way that involved, at least, the making of monetary compensation to the applicant in a lump sum form together with a continuing liability to make on-going weekly payments. This was the outcome of the proceedings that were finally determined in 2005 as noted above. As noted there is no common ground in relation to the applicant’s alleged hearing loss claim.

7 The applicant has represented himself throughout the course of these proceedings and has prepared the documentary materials that he has put before the Tribunal and which he wishes the Tribunal to consider. These materials contain both evidence and argument which is sometimes difficult to disentangle and the significance of some parts of these materials is not always readily apparent. By saying this, the Tribunal does not mean to be critical as this is often the case with unrepresented litigants in this jurisdiction. In oral submissions the applicant was able to adequately explain the significance of most of these materials in such a way that the Tribunal is satisfied that he clearly put forward the case he was seeking to make out. The respondent’s evidence on the other hand was clearly presented, being based upon files that have been maintained over the years, and submissions based on this evidence were cogently put. Therefore the sensible starting point is a consideration of the respondent’s evidence, much of which the applicant did not disagree with at the end of the day.

8 However, before embarking on this course it is of considerable assistance to note that at the hearing the applicant identified the circumstances, and the reasons, which caused him to doubt the sufficiency and fullness of the respondent’s searches. He of course invites the Tribunal to conclude that more likely than not there are relevant files and documents that the respondent has not located and released to him and therefore all reasonable steps were not taken by the respondent, for the same reasons. The circumstances so identified by the applicant are three in number. Firstly, he points to the fact that he had engaged solicitors in the course of his compensation litigation but the respondent has not disclosed to him any of the memoranda of fees that, the applicant asserts, would have been necessarily rendered by these solicitors.

9 He argues that the respondent should have such memoranda and should have records which evidence their payment.

10 Secondly, he has adduced documentary evidence that one firm of solicitors was in fact paid $9293-00 on or before 23 November 2001 (exhibit A8) with respect to his worker’s compensation claim, or one of them, but alleges that the respondent has not disclosed to him any documents or records concerning this payment, nor any documents which relate to a settlement from which this payment may have stemmed.

11 Thirdly, he argues that the respondent’s documents which record payments made to him by way of compensation contain an entry which show that he was paid $58,361-86 on 29 January 2003 but he has received no other documents from the respondent which concern this particular payment. Such documents, he argues, would necessarily exist. The applicant asserts that he did not in fact receive any such payment on or about the date shown in the records.

12 Turning now to the respondent’s evidence. Exhibit R1 is the sworn statement of Katherine Therese Newton-John who is employed by the respondent as its Corporate Secretary and Manager. This evidence of this deponent is that the applicant commenced employment with the State Rail Authority (the SRA) on 25 October 1990. On 01 July 1996 the SRA became Rail Services Australia (RSA) and then Rail Infrastructure Corporation (RIC) on 01 January 2004. RIC is the present respondent. The applicant’s employment changed from one entity to another with each restructure. Whilst the deponent also refers to the transfer of relevant files and personnel following each restructure there is no evidence indicating whether this involved the physical movement of files from one office to another.

13 According to this deponent the applicant injured his left knee on 06 June 1995, whilst working for the SRA. Subsequently, on 28 May 1998, whilst employed by RSA, the applicant injured his back which resulted in right leg impairment as well. Both injuries occurred during the applicant’s course of employment and he had time off work after both injuries. He returned to work after the first injury, but not the second. By reason of his failure to return to work his employment was terminated on 28 April 1999.

14 The applicant then commenced compensation litigation on 13 September 2001 against both the SRA and RSA as he had different relevant employers by reason of the first restructuring. This litigation resulted in an award in the applicant’s favour on 10 July 2002 granting him a lump sum payment, medical expenses and continuing weekly payments of compensation. The evidence of this deponent does not refer to the related proceedings in the Court of Appeal and the subsequent compensation decision in 2005 mentioned above.

15 The applicant made an FOI Act application on 28 May 2004. The delegate who decided this application had recourse to 4 compensation files in the applicant’s name. A brief review of these files, their contents and the periods which they spanned would have been of assistance but there is no evidence of this nature before the Tribunal, most likely because there was no issue between the parties as to the perusal of these particular files. On internal review the applicant sought records that exceeded his initial application. The officer conducting this internal review perused additional records such as payroll documents, long service records and documents maintained by its Human Resources section. The applicant then made a further (second) FOI application on 04 July 2005 which led to an application for internal review on 03 October 2005. This was in fact considered by the respondent and a decision was made on 29 November 2005. The importance of this review decision for present purposes is that the Applicant used it at the hearing to delineate the matters which he currently relies upon. These are the three matters enumerated at paragraphs 1, 2 and 6 (c) of page 2 of that internal review decision. These three matters have been noted above.

16 By letter dated 09 May 2006 the applicant particularised the records he was seeking by reference to particular transactions, matter numbers and types of records. This was replied to by the respondent’s legal advisors. The relevant documents are annexed to this deponent’s affidavit.

17 The second exhibit tendered by the respondent was the sworn statement of Mr Peter Tisano (exhibit R2), the respondent’s Senior Claims Officer. The evidence of this deponent explains the respondent’s method of recording transactions concerning worker’s compensation claims (the figtree system) and its method of recording actual payments made to claimants (the ellipse system). These systems are central to one aspect of the applicant’s concerns, namely the recorded payment to him on 29 January 2003 of $58,361-86.

18 This deponent explains that the figtree system is a management tool which is used for various purposes including recording payments made to date, payments due and payable and anticipated future payments. These records are adjusted from time to time as required. One important feature is that an amount entered as payable in this system is checked before payment is actually made. If payment is confirmed it is sent to the payroll section where upon payment it is recorded in the ellipse system. According to this deponent the entry made in the figtree system on 29 January 2003 in the sum of $58,361-86 involved administrative error as that payment had in fact been made on 09 January 2003 (with necessary income tax and other statutory deductions being made). This error was adjusted by reversing entry on 27 February 2004. The deponent’s sworn statement annexes documents which support this explanation. The applicant accepts this explanation of the entry and he conceded during the hearing that he was not entitled to payment of this sum twice, and he accepted that he had been duly paid this amount. With this explanation, if it be accepted, it is clear that the payment recorded in Figtree against the date 29 January 2003 contains no implication that the respondent’s records in fact contain documents, relating to the erroneous payment record, which have not been disclosed. In closing submissions the applicant accepted that this entry was made in the circumstances as deposed to by this witness and did not press this aspect further. This concession was correctly made in the circumstances. The Tribunal is satisfied that the explanation proffered by this witness should be accepted quite apart from the applicant’s concession.

19 At an earlier point in these proceedings the applicant had been concerned about an entry in figtree recording a payment of $15,225-60 on 29 October 2003. This entry was also reversed on 27 February 2004. Mr Tisano explained that this sum had in fact been paid in smaller amounts to the applicant across a period of time so that the entry on 29 October was in error, or at least required adjustment so as to show the several payments that were in fact made. The applicant did not press this point at the hearing. The Tribunal accepts Mr Tisano’s explanation of this entry. This aspect therefore does not require further consideration in these reasons.

20 Mr Tisano’s sworn statement annexes a letter sent to the applicant dated 08 August 2005. The author of that letter was Mr R W Pentecost, RIC’s Chief Executive Officer. That letter refers to the history of the applicant’s claims, including the appeal and subsequent further hearing in 2005 noted above, and contains explanations of the abovementioned entries in Figtree along the same lines as Mr Tisano has given. It also notes that the respondent has no record of any claim made by the applicant for industrial deafness and that no payment in the sum of $9293-00 was made to the applicant’s solicitors, Messrs Markham Gelkie Farrugia in November 2001. It goes further and asserts that the respondent has received no accounts from, and has made no payments whatsoever to, any of the applicant’s solicitors engaged by him in relation to his legal claims against the respondent. The letter notes that, as at its date, the proceedings to be re-heard after the Court of Appeal decision had not then concluded.

21 The several searches made by the respondent’s officers across the period are detailed in annexure “G” to Mr Tisano’s statement. They are quite extensive and include searches of types of files and areas of operation that have an obvious nexus with the type of claims that the applicant has made. The outcomes of those searches are recorded in this annexure.

22 On 06 October 2005 the applicant sought the assistance of the NSW Ombudsman who reported back to the applicant by letter dated 09 January 2006 (annexure “H” to Mr Tisano’s statement). The Ombudsman’s findings after investigation confirms the evidence that the Tribunal has received in these proceedings.

23 It is important to note that Mr Tisano was employed as the Senior Claims Officer as from July 2000 and that he was instrumental in effecting the payment of the sum of $58,361-86 on 09 January 2003 (see annexure “B” to Mr Tisano’s statement). He was extensively involved in the searches that were made following the applicant’s FOI request. Consequently, these searches clearly have been made, in part, by a person who was involved in the processing of the applicant’s compensation claims at earlier points in time. Whilst many officers who were earlier involved in processing these claims may have resigned at the time that the searches were conducted, as Ms Newton-John deposes, Mr Tisano had not. Therefore it is clear that the searches were conducted involving a staff member who was best placed to know where to look for the records that the applicant sought. Clearly then we do not have a situation where it can be said that officers unfamiliar with the progress of the applicant’s compensation claims, and unfamiliar with the recording systems then in use, have conducted the searches.

24 Exhibit R3 in the proceedings is the respondent’s formal documents filed pursuant to the Tribunal’s usual directions in this regard. These documents have been overtaken in the main by the respondent’s additional evidence referred to above. No separate discussion of exhibit R3 is therefore necessary.

25 The respondent invites the Tribunal, should it accept this evidence, to find that the respondent has taken all reasonable steps available to it to locate all documents that it holds which fall within the FOI application, notwithstanding the evidence adduced by the applicant which gave rise to the three particular aspects he relied upon. This brings us to the applicant’s evidence.

26 The documents relied upon by the applicant were 8 in number, some documents being collections of several different documents. They were marked exhibits A1 to A8. Only some of these documents may be properly regarded as reliable evidence to which weight may be properly attributed. Several documents appear to be compilations of information and argument that the applicant has prepared for the hearing so as to be able to clearly present his case and bring forth the arguments he wishes to rely upon. Others, such as exhibits A1 to A3 inclusive concern interlocutory matters. As such these types of documents do not have a great deal of weight as evidence as they may simply represent the applicant’s views as to how he perceived the facts to be. Consequently care needs to be taken in giving these documents evidentiary value which they should not have. To do otherwise would be unfair to the respondent.

27 Exhibit A4 is the applicant’s statutory declaration filed 20 July 2006. This document contains submissions and argument but, in part, is evidential. The applicant sets out the history of his litigation. This chronological account does not unfold with precision but in the main it accords with the evidence adduced by the respondent. One point of difference though is that the applicant asserts in this evidence that a Mr Farrugia, solicitor commenced a claim against the respondent (then the SRA) concerning a hearing loss that the applicant had suffered. He refers to this as matter number “12334/00”. He says he has no information as to what happened to this claim. The applicant also refers to another person residing in the Newcastle area with the same name who, it appears, also had a worker’s compensation claim on foot.

28 Exhibit A5 contains a number of documents which relate to the payment of $9293-00 to Markham Geike Farrugia, solicitors. It appears that this payment was in fact made but the documents are inconclusive as to the source of the payment. Both the respondent and the applicant’s former solicitor denied forwarding this payment. The investigation conducted by the Legal Services Commissioner concerning this payment was also inconclusive.

29 Exhibit A8 contains 5 bundles of documents as noted in the general index submitted with this exhibit. The first bundle is a further statement by the applicant. It contains an historical account more clearly set out but which accords with the applicant’s earlier statutory declaration as well as with the respondent’s evidence. Again there is a reference to the hearing loss claim, matter 12334/00 commenced by Markham Geike Farrugia in April 2000. There is an additional note though that this claim was taken over by another solicitor, Mr Smart on 25.06.01. Nothing further is said about this claim in this document.

30 The title page of the second bundle is headed “MGF Solicitors”. The first sub-group of documents in this bundle concern the abovementioned payment of $9293-00. It appears from the relevant documents that on or about 12 July 2001 Messrs Stephen Smart and Associates, solicitors, took over the applicant’s worker’s compensation matters from Messrs Markham Geike Farrugia (see letter and memorandum of costs dated 12 July 2001. A second memorandum of costs issued on 23 November 2001 containing some of the same charges, but the total sum was reduced to the $9293-00 figure. This sum was paid the same day by a bank cheque issued by “Westpac Bank”, as the issued receipt evidences. The respondent has given sworn evidence that it did not make this payment and Messrs Stephen Smart and Associates also deny making this payment in their correspondence that has been referred to previously. By letter dated 02 August 2005 Stephen Smart and Associates advise that the applicant’s workers compensation matters have been taken over by Messrs Turner & Freeman, solicitors. In that letter they state that they cannot explain the subject payment in 2001 as the Compensation Court decision was not handed down until 10 July 2002. In these circumstances the Tribunal accepts the respondent’s evidence that it did not make the subject payment, it being important here to note that the payment was effected by a bank cheque rather than a cheque drawn on the respondent’s own account. Consequently, the Tribunal does not draw any inference from this payment that the respondent has records which it has not located and does not draw any inference that it failed to make any reasonable search for records relating to this payment. In fact the evidence shows that it did make searches in an endeavour to locate records evidencing this payment, as its denial of making the payment attests. The fact that the payment was made by bank cheque, rather than from a solicitor’s trust account suggests that some third party in fact made the payment, perhaps even the applicant himself. However, the Tribunal need not make any further finding about this, it being sufficient to accept the respondent’s evidence that it did not make the payment. It follows from this that there is no basis for inferring that the respondent might well have records relating to any such payment.

31 The second sub-group of documents in this second bundle of exhibit A8 demonstrate that the applicant in fact obtained a medico-legal opinion (dated 31 March 2000) as to hearing loss, which Dr. Ghabrial records as being historically related to the applicant’s employment with the respondent, or an earlier entity. As at the date of this report Messrs Markham Geike Farrugia were acting for the applicant. This group of documents also contains a copy of an affidavit of service (by post) relating to matter number 12334 in the Compensation Court of NSW. That affidavit states that the application in this matter was served by post upon SRA and RSA on 14 September 2000 and, in particular, upon the “the Rail Cover Compensation of Unit 11, 31 York Street, Sydney” (see paragraph 5 of the affidavit). These are the proceedings which the applicant asserts concerned his hearing loss claim. The deponent of this affidavit was one Mr Chris Brennan, a member of Markham Geike Farrugia. No evidence from Mr Brennan, apart from his letters and this affidavit, has been adduced by the applicant in these proceedings. There is nothing in this evidence indicating that this matter concerned a claim for hearing loss by the applicant.

32 The final sub-group of documents in this second bundle show that the applicant transferred his compensation matters from Stephen Smart and Associates to Messrs Lyons & Lyons on 05 August 1999 and then to Markham Geike and Farrugia on 25 October 1999.

33 The remaining bundles in exhibit A8 contain the several judgments on the applicant’s compensation claims in 2005 (which relates the 2002 findings and decision) and the Court of Appeal decision in 2004. These judgments do not refer to the hearing loss claim. They also contain communications between Stephen Smart & Associates and other solicitors.

34 As noted earlier the applicant confined his submissions to three particular matters for the purposes of this hearing. The Tribunal is satisfied that the applicant, in so doing, adequately presented his case on the materials available and made this decision with an informed understanding of how he wished to present his case. During the course of the hearing the applicant demonstrated his full understanding of the issues that were being addressed.

35 The first aspect pressed was that, as the applicant had engaged several legal representatives, he anticipated that they may have rendered fees to the respondent from time to time, but the respondent has been unable to locate any such documents. In this regard the Tribunal is satisfied that if such memoranda of fees had been rendered they would be located on the compensation files that the respondent’s officers have in fact perused or would have been referred to in the Figtree or ellipse recording systems. They found no such documents. There are no other searches that should reasonable be undertaken to locate any such documents.

36 The second aspect pressed was the payment made to Markham Geike and Farrugia on or about 23 November 2001 as shown in the receipt issued by that firm on that date. This aspect has been dealt with above. If such payment has in fact been made it would have necessarily appeared in the ellipse system and in the figtree system as well. Clearly the latter system was subject to adjustments from time to time given that it involved, in part, anticipated payments, but the ellipse system recorded payments when they were actually made. There is no relevant record in either system and the receipt that issued with respect to this payment referred to payment by bank cheque and did not indicate the name of the payee. The Tribunal is not persuaded that an inference should be drawn from this document that the payment was made by the respondent. In these circumstances, there are no further searches in this regard that the respondent could reasonably make.

37 The third aspect was the duplicated record concerning the payment of $58,361-86. This clearly was a recording error and has adequately been explained. Mr Tisano’s evidence was that he gave this explanation to the applicant at a much earlier point in time, but at that stage it appears that the applicant was not minded to accept it. This is difficult to understand given the applicant’s obvious awareness as to the status and outcomes of his compensation litigation. He at all times during the hearing of these proceedings evidenced a clear understanding of the claims he had made and at no stage appeared unsure or uncertain about these matters, with the exception of the outcome and status of his hearing loss claim. This erroneous recording therefore does not suggest that there are other searches that could reasonable be made by the respondent.

38 There is one further matter that requires consideration. This arises from the applicant’s documents and evidence concerning his hearing loss claim. This claim was not referred to in the judgment given on the applicant’s claims in 2005. It is clear from the documents that the applicant was medically examined in relation to such a claim and the affidavit of service by Mr Brennan suggests that a claim, which may have been for hearing loss, was served on the SRA and the RSA as discussed above. The respondent has searched for this claim but has been unable to find it. It is clear from the evidence discussed earlier that the applicant was medically examined in relation to a hearing loss claim. The applicant’s evidence is that he is unaware of the fate of this claim. There are clear suggestions in the evidence that at some stage the applicant believed that this claim had settled in 2001 (see the applicant’s letter dated 03.10.05 annexed to exhibit R1 and the applicant’s letter dated 09.05.06 in exhibit A8). The last note on the subject is the letter from Markham Geike and Farrugia to the applicant dated 27 May 2005 advising him to contact Messrs Smart & Associates concerning his claim for “industrial deafness” (exhibit 8) and the later letter from Messrs Turner Freeman to the applicant advising him that they had reviewed some 7 volumes of files relating to his worker’s compensation claim. (exhibit 8). The application that Mr Brennan refers to in his affidavit of service discussed earlier is not in evidence in these proceedings, which is unfortunate as it would show the nature of the injuries relied upon to support the claim. In the absence of such evidence the applicant’s assertion that this affidavit of service refers to his hearing loss claim is no more than speculation on his part. The Tribunal is not persuaded that this evidence is sufficient to establish that the applicant’s solicitors had in fact made such a claim, nor that they had commenced and served legal proceedings in relation to such a claim, on the respondent or one of its predecessors. It does of course show that such a claim was in contemplation, but no more. It does not persuade the Tribunal that the respondent was actually notified of this claim. This is sufficient to dispose of this aspect. However, there is an additional reason.

39 The evidence of the respondent that it has no record of any such claim being made is reliable evidence given the files it has maintained in relation to the applicant’s several claims for compensation across the years. The Tribunal accepts this evidence. Given this finding it is not possible to infer that the respondent has a file relating to a hearing loss claim by the applicant that it has not located in its searches. If such a file did exist the respondent would have located it during the course of the many searches that it undertook when processing the application the subject of these proceedings. There is therefore no basis for finding that the respondent has failed to undertake all reasonable searches available to it. In fact it has made extensive searches and in fact has been unable to locate any file relating to a hearing loss claim by the applicant.

40 For these reasons the respondent’s decision under review is affirmed and the Tribunal so orders.