Diodato and Comcare
[2000] AATA 407
•25 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 407
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1817
GENERAL ADMINISTRATIVE DIVISION )
Re Vince DIODATO
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr P Lynch, Member
Date25 May 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
M T LEWIS
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION - permanent impairment - tinnitus - industrial deafness- employed as motor mechanic - whether hearing loss caused by occupational noise - whether work-related hearing loss satisfied 10% threshold - whether tinnitus work-related - whether chiropractic treatment reasonable medical treatment for tinnitus
Safety, Rehabilitation and Compensation Act 1988 – ss 16, 24
REASONS FOR DECISION
25 May 2000 Mrs M T Lewis, Senior Member Dr P Lynch, Member
This is an application made by Vince Diodato ("the Applicant") for review of a reconsideration decision of a delegate of Comcare ("the Respondent") dated 5 November 1998 (T32). That decision affirmed an earlier determination made on 6 June 1998 (T27) that the Respondent was not liable to pay lump sum compensation in respect of permanent hearing loss and that it was no longer liable to pay for the cost of chiropractic treatment obtained by the Applicant to treat his tinnitus.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1). The Applicant gave oral evidence at the hearing. The following documents were tendered on behalf of the Applicant –
Letter from Australia Post addressed to the Applicant, dated 22 December 1988 (exhibit A).
The following documents were tendered on behalf of the Respondent –
Edensor Park Family Medical Centre medical records produced by the Respondent in response to a summons (exhibit 1);
Medical reports of Dr G M Halliday, ENT surgeon, dated 20 May 1999 and 13 September 1999, and audiogram report of Dr Winkler dated 30 July 1999 (exhibit 2).
Dr G M Halliday was called by the Respondent to give telephone evidence at the hearing.
applicable legislation
The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), are as follows -
s24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)the impairment constituted by the loss, or the loss of the use, of a toe;
(c)the impairment constituted by the loss of the sense of taste;
(d)the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
s16 Compensation in respect of medical expenses etc.
(1)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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner…or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4)An amount of compensation payable by Comcare under subsection (1) ispayable:
(a)to, or in accordance with the directions of, the employee;
(b)…
(5)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
background
The Applicant was employed as a motor mechanic with the Department of Administrative Services in 1989. On 15 November 1995 he claimed compensation in respect of hearing loss and tinnitus in the right ear which he attributed to industrial noise and an incident that occurred on 5 January 1993 when transmission fluid dropped into his right ear (T7).
On 3 June 1998 the Respondent determined (T27) that the Applicant suffered binaural hearing loss of 18.2 percent, and accepted that his claim for tinnitus was work-related on the basis that Dr Gillam, Ear, Nose and Throat ("ENT") surgeon opined that at least part of the condition was related to the Applicant's employment. That determination also found that on the opinion of Dr Leon Gillam (T26), chiropractic treatment was not suitable treatment for his tinnitus, and therefore the Respondent would not continue to pay for such treatment. It was calculated that 6.4 percent was the work-related component of the Applicant's hearing loss, which equated to 3 percent whole person impairment. The Respondent determined that the Applicant was not entitled to compensation under s24 of the Act because he did not meet the 10 percent threshold required by the Act. The Respondent made a reconsideration determination on 5 November 1998 affirming the decision (T32).
The Applicant has been examined by a number of ENT specialists at the request either of the Applicant or the Respondent. It is common ground that the Applicant suffers from hearing loss, but there is disagreement about its cause and level of impairment. The parties agree that the Applicant suffers from tinnitus; the point of contention is whether it is work related and whether the Respondent is liable to pay for chiropractic treatment for that condition.
applicant's evidence
The Applicant was born on 17 October 1948. He was employed as a motor mechanic with the Department of Administrative Services ("DAS") from January 1989 until he ceased work there in June 1998. He claims that whilst he was servicing a car on 5 November 1993, some oily fluid dropped into his right ear. He said that he tried to wash away the fluid with water. He then felt a burning sensation in the right ear (T4 and T7). Whilst being employed at DAS the Applicant said he was exposed to general workshop noise from air compressors, heavy vehicle equipment and rattleguns. He wore no earmuffs when working at DAS (T16). The Applicant's employer (DAS) claimed that the environment in which the Applicant was working was "not unduly harsh or noisy", and that there was nothing in his job which was likely to cause his condition (T7).
Prior to working at DAS the Applicant worked as a motor mechanic with various government and private employers, from about April 1986. He noted that earmuffs were used in those jobs (T16).
In his oral evidence the Applicant said that he experienced ringing in his ear, but no giddiness or vomiting. The diagnosis of Menier's Disease and his complaints to his general medical practitioner of dizziness and vertigo were brought to his attention in cross-examination. In response he did not deny that he had attended his doctor suffering from these complaints. He said he understood Menier's Disease was the same as tinnitus. He noted that the ringing was only in his right ear.
10. The Applicant denied that he gave false responses during the audiometry testing performed by Dr Halliday.
11. The Applicant said that he had a hearing test when he worked for Australia Post that showed "everything all right". He provided a letter from Australia Post dated 22 December 1988 indicating that he met the required medical standard for employment (exhibit A). He said he did not suffer from tinnitus then. He said that his hearing loss and tinnitus developed while he was employed by DAS. He also said that his hearing loss and tinnitus had become worse since he ceased that employment.
medical evidence
12. The Tribunal notes that an audiogram dated 19 December 1988 (T3) was performed at the request of Australia Post presumably as part of the Applicant's employment medical examination. Dr Gillam (T26) considered that this revealed relatively normal hearing for the Applicant's age, but he noted that there was a small differential loss in the right ear compared to the left.
13. Dr P Winkler, ENT surgeon, examined the Applicant on 16 February 1995 and provided a report (T10). He performed an audiogram that showed a bilateral high tone sensorineural hearing loss. Dr Winkler considered that the pattern of the audiogram was characteristic of industrial noise damage and he attributed all of the Applicant's hearing loss to that cause. Dr Winkler assessed 14.6 percent hearing loss in the right ear and 7 percent in the left. Binaural hearing loss was assessed at 8.52 percent.
Dr Winkler obtained the following history from the Applicant –
He … worked at the Mascot workshop as a motor mechanic for the last eight years. He does general maintenance on cars and trucks. He is exposed to the noise of air guns undoing bolts on wheels as well as air compressors and steel drills. He does not wear ear muffs or ear plugs.
Dr Winkler noted the Applicant's main problem was tinnitus in the right ear. Dr Winkler opined the tinnitus was likely to have resulted from industrial noise damage.
Dr D V Pohl, ENT surgeon, examined the Applicant and provided a report dated 19 May 1997 (T15). He noted that the Applicant denied having vertigo. On examination, the Applicant had intact mobile drums and a bilateral moderate sensorineural deafness that was marginally worse in the right ear. Dr Pohl noted that an audiogram dated 16 May 1997 (T14) confirmed the clinical findings. The audiogram showed binaural hearing loss at 24 percent assessed according to State rather than Commonwealth criteria. Dr Pohl considered that the Applicant's hearing loss was a combination of industrial deafness and probable familial deafness.
An audiogram dated 3 November 1997 conducted at St Vincent's Hospital by Toni East, audiologist, shows the Applicant suffered from a "mild to severe sensorineural hearing loss in the right ear and a mild to moderately severe sensorineural hearing loss in the left ear" (T22).
Dr Leon Gillam, ENT surgeon, examined the Applicant at the request of the Respondent and provided a report dated 8 May 1998 (T26). He noted that an audiogram performed on 26 April 1998 (T26) showed right ear hearing loss of 32.2 percent and left ear hearing loss of 14.7 percent. He assessed the Applicant's binaural hearing loss at 18.2 percent, equating to 6.14 percent after applying the "principles of apportionment".
19. Dr Gillam noted, however, that the flat nature of the curve of that audiogram was not truly consistent with occupational noise induced hearing loss, nothwithstanding previous audiograms (from Dr Winkler and St Vincent's hospital) which did show some noise induced hearing loss. However, Dr Gillam agreed with Dr Pohl's view, that the Applicant's deafness was a result of industrial deafness and probable familial deafness. Dr Gillam did not consider the transmission oil incident to be related in any way to the Applicant's compensable hearing loss.
20. Dr Gillam was unable to apportion the amount of the Applicant's tinnitus that was related to his employment with DAS as it was a symptom related both to familial and industrial deafness. Nonetheless, he considered it reasonable to include it at least partially in his claim.
Dr G M Halliday, ENT surgeon, examined the Applicant on 17 May 1999 at the request of the Respondent, and conducted an audiological assessment at that time. In his report (exhibit 2) he stated that if one accepted the audiogram performed by him on 17 May 1999 as accurate, then the Applicant's hearing loss showed no relationship to a noise induced hearing loss. In oral evidence Dr Halliday explained that the audiogram was not sufficiently stable for him to make an estimate of the cause of the damage. He believed the audiogram was not an accurate representation of the Applicant's hearing threshold because if his hearing was as bad as was reflected in the audiogram it would have been extremely difficult for him to have understood Dr Halliday's questions when he provided Dr Halliday with his medical history.
Dr Halliday considered that calculations for hearing loss were not possible until consistent audiograms had been obtained at separate intervals, which had not been achieved in this case. In his oral evidence he noted that the material before him was not sufficiently reliable to enable an assessment to be made. He recalled that his audiogram was significantly different from the others that he had seen. He considered that audiograms are remarkably repeatable in someone who is responding reliably, so that there should not be a vast difference between audiograms taken on separate occasions, unless either there is an instrument failure or a failure of response by the person being tested. He was confident that in this case there was no equipment failure. He considered that there might have been a failure in response by the Applicant in the audiogram he performed, which would explain the disparity between his audiogram and the others.
Dr Halliday said he expected that if the Applicant had a noise induced hearing loss it should be approximately equal in both ears. Additionally, a noise induced hearing loss shows a sloping audiogram, with hearing loss maximal usually at 4000 dBs, although it can be between 3000 and 6000. However, there is not a loss of frequencies at 256 or 500, except for someone who has been exposed to extraordinary noises over a prolonged period. Dr Halliday said that hearing at 256 is almost always preserved. Dr Halliday opined that noise related hearing loss is invoked contemporaneously with noise exposure and cessation of exposure is cessation of further hearing loss.
24.Dr Halliday said that if the transmission fluid had caused problems it would be by damaging the canal or ear drum, which in this case did not happen. It would not produce a nerve ending loss.
Dr Halliday's attention was drawn to relevant parts of clinical notes from the general medical practice attended by the Applicant (exhibit 1). In particular, it was noted on 12 November 1995 – "Told he has Menier's Disease by Dr … Scoppa...". On 14 November 1995 the Applicant complained of tinnitus and on 25 November 1995 it was recorded that he was "bit dizzy". On 11 April 1996 he was "dizzy, ringing R ear". On 27 April 1996 it was recorded "dizzy today after running rapidly, ringing R ear. The Applicant complained again of dizziness or vertigo in October 1996 and January and March 1997. Again in September 1998 he complained of being dizzy, and a diagnosis of Menier's Disease was questioned. Dr Halliday considered that this history was suggestive of damage or disturbance in the inner ear. Dr Halliday noted that the medication Sork was used, which was intended to improve the blood supply to the inner ear. He said that vertigo was not a symptom of noise induced hearing loss. It required injury through head trauma or fracture involving the inner ear, or loss of fluid in the inner ear. Dr Halliday considered that it was not possible that vertigo was associated with the transmission fluid incident.
26.Dr Halliday said that Menier's disease is unilateral, but when it has been present for a long period, the other ear can become involved which normally takes some decades. He considered it possible that the Applicant has Menier's disease but the degree of loss in both ears raised an uncertainty.
27.Dr Halliday explained that tinnitus is a symptom associated with damage to the nerve ending. He said that tinnitus is very frequent in otosclerosis, a middle ear condition, but it is almost universal in inner ear damage from any cause, whether genetic, or noise induced, or for some other reason. It is a symptom that does not assist in identifying the aetiology of hearing loss. On the basis of the clinical notes of the Applicant's general medical practitioner, Dr Halliday said that he would exclude industrial deafness. He was unable to explain why the Applicant experienced tinnitus only in his right ear, especially when noting that the audiogram showed that he had better hearing in his right ear than his left.
Dr Halliday examined an audiogram conducted by Dr Winkler dated 30 July 1999 and provided a supplementary report (exhibit 2) noting that it showed a flat frequency loss. His opinion that the demonstrated hearing loss was not work related remained unchanged. He also noted the audiogram displayed greater loss in the right ear than the left, which was contrary to the expected outcome of bilateral symmetrical hearing loss.
Chiropractic treatment for tinnitus
29.Dr Romeo, general medical practitioner, provided a medical certificate on 14 November 1995 indicating that the Applicant was benefiting from chiropractic treatment for his tinnitus (T5).
30.In his report dated 16 February 1996 Dr Winkler considered it reasonable the Applicant continue chiropractic treatment since there was "little else" that could be done, notwithstanding that such treatment was not normally recommended (T10).
31.In her report dated 6 November 1997 Toni East, audiologist, noted that the available literature on tinnitus provides no scientific evidence to support chiropractic manipulation as a standard form of effective treatment for tinnitus. However chiropractic treatment for other conditions has provided anecdotal reports of concomitant reduction in tinnitus perception (T22).
32.Dr Gillam did not consider that acupuncture was a recognised treatment for tinnitus. However he also said (T26) –
I do not dismiss [acupuncture] as a therapeutic methodology – however, in the event that it has not so far cured, but only modified the condition, I would not recommend continuation of this mode of treatment.
It is not clear to the Tribunal whether Dr Gillam misunderstood that the treatment at issue in this case was chiropractic and not acupuncture.
33.Dr Halliday opined that chiropractic treatment would not be a reasonable option for the Applicant's tinnitus condition as it was highly debatable whether it would be effective (exhibit 2).
submissions
34.The Applicant submitted that on the audiometry assessment of Dr Pohl dated 16 May 1997 (T14), a binaural hearing loss of 24 percent, when divided by two, gave a permanent impairment of 12 percent. In the alternative, Dr Winkler assessed binaural hearing loss of 33.5 percent after correction for presbyacusis (attachment to exhibit 2) which, when divided by two, gave a permanent impairment of 16 percent. The Applicant also submitted that there is medical evidence to support that his loss of hearing is caused by loud noise at work, that his hearing loss is now permanent and that it developed when he was working for DAS.
35.It was submitted for the Respondent that although the Applicant maintains that his hearing loss and tinnitus are work related, he has made a number of concessions. Dr Gillam (T26) noted an audiogram in 1988 which showed a small differential loss in the right ear compared to the left, whereas in other evidence the Applicant said he did not notice he had a hearing problem until much later and after he had commenced work with DAS.
36.It was submitted that the Applicant's responses were unreliable and that he was exaggerating. Although he denied that he was exaggerating, Dr Halliday's evidence was that there were gross inconsistencies in the Applicant's response to audiometry. If the audiogram performed by Dr Halliday was correct then the Applicant would not have been able to communicate with Dr Halliday as he had done in the consultation. The Applicant said in cross-examination that his hearing loss and tinnitus had become worse since his employment ceased. Either proposition, if correct, was a factor against his complaints being work related. The evidence of Dr Halliday was that any deterioration in his hearing could not be work related.
37.It was submitted for the Respondent that when the content of the clinical notes of Dr Romeo was put to the Applicant in cross-examination he was somewhat agitated, but he did not deny he had told Dr Romeo that he suffered dizziness or vertigo. Indeed, he made a number of such complaints to Dr Romeo over a period of time, which was inconsistent with the history that he gave to Dr Pohl. In turn, Dr Pohl's conclusion was supported by Dr Gillam. There was no history given to anyone which included dizziness or vertigo. On Dr Halliday's oral evidence, there was such symptomatology present that countered against industrial deafness and pointed instead to some inner ear condition. The other factor Dr Halliday thought significant in pointing away from industrial deafness was the shape of the audiogram. Differential hearing losses for the right and the left ears were not consistent with noise induced hearing loss. The history of dizziness compounded that.
38.In respect of the Applicant's dizziness and vertigo, Dr Halliday said this could not be related to noise and there was no other evidence on that issue. Although Dr Halliday considered that tinnitus could not be related to noise induced hearing loss he did not accept that there was noise induced hearing loss in this case and he pointed to other possible reasons for the Applicant's condition. Dizziness would arise from some trauma. In respect of tinnitus Dr Halliday said that it could not be related to the incident when the Applicant had some transmission fluid fall into his ear, and there was no support for the Applicant on that issue in any of the medical reports.
39.It was submitted for the Respondent that the best view of the medical evidence is that it cannot persuade the Tribunal that there is any hearing loss due to noise. In respect of tinnitus, the Tribunal can be "almost certain" that tinnitus cannot be related to the transmission fluid incident. It could be related to industrial noise but only if the Applicant's hearing loss is related to industrial noise. However, although the industrial noise ceased when the Applicant ceased work in June 1998, there is evidence of further hearing loss, which is "a matter of confusion". Additionally, a matter of further confusion is that the Applicant's tinnitus is unilateral.
40.It was submitted that if Dr Halliday is wrong and if part of the Applicant's hearing loss is due to noise, the Applicant is left with the problem that the tinnitus itself is entirely due to his employment and is only assessed at 5 percent. In respect of hearing loss evidence, assessment of binaural hearing loss on the evidence of Dr Winkler is 8.52 percent and according to Dr Gillam, 6.14 percent, and whichever figure is adopted it has to be divided by two, which yields less than 5 percent. The only other audiometric report before the Tribunal is from Dr Pohl (T14) who assessed "State binaural" 24 percent, which might be quite a different measure from the Commonwealth measure. Dr Pohl does not appear to have reduced that 24 percent to take account of non-compensable components in the same way Dr Gillam and Dr Winkler have tried to do. It was submitted that therefore the Tribunal should not rely on Dr Pohl's assessment.
41.In respect of the latest audiogram which has been furnished by Dr Winkler and dated 30 July 2000 (attachment to exhibit 2), it was submitted for the Respondent that this audiogram is not accompanied by any report and it provides no indication as to the apportionment of the compensable and non-compensable components of the binaural hearing loss which he calculated at 33.5 percent. Moreover, that figure is in sharp contrast to the assessment of hearing loss which he provided in his report dated 16 February 1996 (T10). It was submitted that the latest audiogram provided by Dr Winkler also highlights the inconsistency between it and the responses which the Applicant gave to the audiometric testing by Dr Halliday.
42.It was submitted that on the balance of probabilities the evidence is that the Applicant has not met or exceeded the threshold for payment of compensation for permanent impairment. In respect of the Applicant's tinnitus, it was submitted that the Tribunal ought not accept that it is related to industrial noise exposure. Moreover, on the evidence there is no continuing indication for chiropractic treatment for tinnitus.
43.It was submitted for the Respondent that the Tribunal affirm the decision under review. The Respondent was not seeking to have the Tribunal determine that the primary decision and reconsideration decision that found in favour of the Applicant in relation to a work-caused hearing loss be set aside.
consideration of evidence and findings of fact
44.The Tribunal notes the Respondent's submission which in effect is not requiring the Tribunal to overturn the Respondent's decision to pay compensation to the Applicant on the basis that his hearing loss was work-related, in that, on the evidence of Dr Gillam there were some aspects of noise related deafness and some portion which were not noise induced. However, it is open to the Tribunal to find that the Applicant does not suffer from noise induced deafness.
45.On the evidence in the audiogram performed in 1988 and its interpretation by Dr Gillam (T26), the Tribunal finds that the Applicant suffered from a minor level of hearing loss, more on the right than the left, before he commenced his employment at DAS. The Tribunal accepts the Applicant's evidence that he did not experience tinnitus until about 1993, but finds on the medical evidence that his tinnitus is not related to the incident when transmission fluid dropped into his right ear. The Tribunal also finds on the medical evidence that the incident involving the transmission fluid has not in any way contributed to his hearing loss.
46.On the basis of the serial audiometric evidence the Tribunal finds that there has been a deterioration in the Applicant's hearing loss since he commenced work at DAS in January 1989, soon after the 1988 audiogram was performed. The Tribunal also finds that because of the lack of symmetry in the Applicant's hearing loss there is at least a component of his hearing loss that is not noise induced. Hence there are two aspects of his hearing loss which are unrelated to his work at DAS.
47.The Tribunal accepts the Applicant's evidence that he did not wear ear muffs whilst working at DAS, and that he was subjected there to loud noise on a regular basis.
48.The Tribunal finds that the Applicant was not responding accurately at the time Dr Halliday performed his audiogram, and that therefore the results of that test have been rendered useless. The Tribunal also finds that the Applicant has attempted to exaggerate the level of his hearing loss, which is in contrast to the hearing ability that he demonstrated at the hearing of these proceedings. That has apparently coloured the opinion provided by Dr Halliday, who then opined that there was no evidence that the Applicant suffered from any noise induced hearing loss.
49.Taking into consideration all the evidence, the Tribunal finds that there is evidence to support that the Applicant suffers from some noise-induced deafness, but the proportion of that is quite unclear. The Tribunal notes the documentary evidence of DAS that the Applicant's work environment was not unduly harsh or noisy, and on the basis of that evidence, which the Tribunal accepts, the Tribunal finds that the proportion of the Applicant's hearing loss attributable to his employment with DAS is a minor part of his overall hearing loss.
The Tribunal finds that the level of impairment arising from the Applicant's hearing loss does not meet the 10 percent threshold required by the legislation. Table 7.1 of the Guide to the assessment of the degree of permanent impairment requires that hearing defects are assessed in accordance with the Australian National Acoustic Laboratories. The calculation of the binaural hearing loss is converted to a whole person impairment by dividing the binaural percentage by two. Because of the inaccuracy of the audiogram performed by Dr Halliday the Tribunal does not propose to rely on it. The Applicant submitted that the Tribunal should accept the binaural assessment of Dr Winkler of 33.5 percent, which when divided by two would provide a medical impairment of 16.7 percent. The Tribunal rejects that submission because it takes no account of the non-noise induced component of the hearing loss which the Tribunal has found to be major. Even if the noise induced component was 50 percent, then Dr Winkler's assessment does not enable the Applicant to reach the threshold 10 percent. Similarly, if the Tribunal used the binaural assessment of Dr Pohl (T14) of 24 percent, then after dividing that by two the resultant 12 percent whole person impairment then needs to be reduced by more than half to take account of the non-noise induced hearing loss, which brings the percentage to below the legislative threshold. A further problem with Dr Pohl's assessment is that it is not clear that he has used the National Acoustic Laboratories method of assessment when he refers to "State Binaural 24%". Indeed, there is no evidence before the Tribunal that brings the Applicant to the 10 percent threshold after taking into account the Tribunal's findings that the work-related component of his hearing loss is quite low.
51.Therefore the Tribunal affirms that part of the decision under review that refused the Applicant's claim for payment of compensation for permanent impairment in respect of his hearing loss.
52.The Tribunal finds that the Applicant has attempted to withhold evidence about his complaints of dizziness and vertigo, and the diagnosis of Menier's Disease, which obviously were sufficiently troublesome for him to consult his general medical practitioner about over a period of a number of years whilst employed at DAS. On the evidence of Dr Halliday and the clinical notes of his general practitioner, the Tribunal finds that the Applicant probably has suffered from Menier's Disease, and that at least some of his deafness has probably arisen from that source. The Tribunal notes Dr Halliday's opinion that it would have been impossible for the Applicant's dizziness to be caused by the incident. The Tribunal finds that there is no evidence to suggest that damage has occurred to the Applicant's ear drum and canal, which on the opinion of Dr Halliday would have happened if the transmission oil incident had caused the tinnitus.
53.The Tribunal notes the Applicant's evidence that his tinnitus is in his right ear, and on the evidence of Dr Halliday, if the tinnitus was related to noise induced hearing loss it would be bilateral. Therefore, the Tribunal finds that there is no component of the Applicant's tinnitus that can be assessed for permanent impairment. Similarly, as his tinnitus does not arise from his noise-induced deafness the Tribunal finds that the Respondent is no longer liable to pay compensation in respect of medical treatment for that condition. Additionally, on the evidence, there is little support for the efficacy of chiropractic treatment for tinnitus, and therefore the Tribunal finds, pursuant to s16(1) of the Act, that chiropractic treatment is not treatment that is reasonable for the Applicant to obtain in the circumstances.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr P Lynch, Member
Signed: …………………………………………….
Associate
Date/s of Hearing 8 October 1999
Date of Decision 25 May 2000
Counsel for the Applicant N/A
Solicitor for the Applicant Unrepresented
Counsel for the Respondent Mr Johnson
Solicitor for the Respondent Ms Lynette Rieper, Barker Gosling
0
0
0