Fitzgerald v Seventh Day Adventist Aged Care (North NSW) Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fitzgerald v Seventh Day Adventist Aged Care (North NSW) Ltd [2021] NSWPIC 197
APPLICANT:	Julie Fitzgerald
RESPONDENT:	Seventh Day Adventist Aged Care (North NSW) Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	22 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for hearing aids pursuant to section 60 of the 1987 Act; dispute as to whether notice of injury given and claim made in time, noisy employment, last noisy employment and reasonable necessity of proposed treatment as a result of injury; concession by respondent that claim made in time; Unilever Australia Ltd v Petrevska applied; preference for lay evidence of applicant’s former supervisor over lay evidence relied on by respondent; respondent relied on noise level testing performed several years after applicant ceased employment; independent medical assessors for both parties did not accept results of noise level testing; respondent’s medical assessor described noise surveys as serving no probative purpose; both independent medical assessors accepted that the applicant has noise-induced hearing loss and the respondent was her last relevant employer pursuant to section 17 of the 1987 Act; Dawson and others t/as The Real Cane Syndicate v Dawson and Diab v NRMA Ltd applied; submission by respondent that medical dispute be referred to Medical Assessor for non-binding opinion; submission by applicant that referral to Medical Assessor not necessary; Held- the applicant gave notice of injury and made a claim within time; the applicant sustained injury, that is loss of hearing, arising out of or in the course of her employment with the respondent, which was the last relevant employer; the provision of hearing aids is reasonably necessary medical treatment; award for the applicant for the provision of hearing aids pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. That the respondent is to pay, pursuant to section 60 of the Workers Compensation Act 1987, the cost of the provision of binaural digital hearing aids.

STATEMENT OF REASONS

BACKGROUND

The applicant, Julie Fitzgerald (Ms Fitzgerald) claims to have sustained hearing loss (industrial deafness) as a result of exposure to noise in the employ of the respondent, Seventh Day Adventist Aged Care (North NSW) Ltd. The injury is claimed to have occurred on 6 March 2015, which was the last date on which the applicant performed any work for the respondent.

By letter dated 29 October 2019, Ms Fitzgerald claimed the cost of the provision of binaural hearing aids, pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).

On 15 November 2019, the respondent’s workers’ compensation insurer, AAI Limited trading as GIO (GIO) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). GIO disputed that the respondent was a noisy employer by which the applicant was employed; and that it was the last noisy employer by which she was employed, pursuant to section 17 of the 1987 Act. GIO also maintained that the applicant had failed to give notice of injury or to make a claim within the time required by sections 254 and 261 of the 1998 Act. Finally, GIO disputed that the medical treatment was reasonably necessary as a result of an injury, as required by section 60 of the 1987 Act.

By letter dated 23 February 2021, the applicant’s solicitors requested on her behalf a review of the decision to dispute liability for her claim, pursuant to section 287A of the 1998 Act.

On 8 March 2021, the respondent’s solicitors served a further notice, maintaining the decision to dispute liability.

The applicant filed an Application to Resolve a Dispute (the Application) on 10 March 2021. She claimed to have sustained industrial deafness, a disease injury, as a result of noise exposure at the respondent’s premises, with deemed date of injury of 15 March 2015. The Application claimed the sum of $5,505.21, pursuant to section 60 of the 1987 Act, for the provision of binaural hearing aids.

The respondent filed its Reply on 25 March 2021.

ISSUES FOR DETERMINATION

The parties agreed at the conciliation/arbitration hearing that the following issues remain in dispute:

(a) Whether the respondent was a noisy employer as required by section 17 of the 1987 Act.
(b) Whether the applicant gave notice of her injury and made a claim, as required by sections 254 and 261 of the 1998 Act.
(c) Whether the provision of binaural hearing aids is reasonably necessary medical treatment, as required by section 60 of the 1987 Act.

The respondent referred in its written submissions to the dispute that it was the applicant’s last noisy employer. However, no submissions were made regarding this issue, and the evidence is that the applicant was not previously employed in noisy employment and has not been employed since leaving the respondent’s employ.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 26 April 2021.
Ms Grotte of counsel appeared for the applicant, instructed by Ms Pearson. Ms Goodman of counsel appeared for the respondent, instructed by Ms Blake. The applicant was present, as was Ms Brown of GIO.

The Application was amended by consent to plead that the deemed date of injury is 6 March 2015.

The applicant submitted that, should the matters other than the reasonable necessity of the medical treatment be determined in her favour, I should determine that issue, rather than refer the medical dispute to a Medical Assessor for an opinion. The respondent submitted that the medical dispute should be referred to a Medical Assessor.

At the conclusion of the applicant’s submissions, there was insufficient time in which to complete the hearing of the matter. The respondent was therefore directed to file and serve written submissions by 10 May 2021. The applicant was directed to file any submissions in reply by 24 May 2021.

The respondent filed its submissions on 11 May 2021. The applicant filed submissions in reply on 25 May 2021.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The Application and attached documents; and
(b) Reply and attached documents.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Julie Fitzgerald

The applicant’s statement is dated 28 May 2020.

Ms Fitzgerald stated that her employment before she commenced work with the respondent in about 2011 did not involve working in noisy conditions.

From about 2011 to 2017 the applicant was employed by the respondent as a cleaner/laundry attendant. She worked her last shift on 6 March 2015, before going on workers’ compensation for an unrelated injury. She never resigned and does not recall her employment being terminated, but she has been told her name has not been on the roster since about 2017. She has not worked since 6 March 2015.

The applicant provided evidence about her work as a cleaner, which included spot cleaning about 20 rooms each day, as well as doing a full clean of about 10 rooms a day. If there was a need to clean food spills or toilet accidents, she used a carpet extractor. This was a large industrial machine that was very noisy. The frequency and length of time she used it would vary, from about 20 to 60 minutes per week.

The applicant was also exposed to the noise of an industrial pull along vacuum, for about one hour a day.

A few months after she started, the applicant was moved into the laundry for three days a week, working as a cleaner on Level 2 for two days a week. She was the only cleaner on Level 2, which had 35 rooms. Each room needed a full clean once a week. The applicant cleaned half the rooms on one shift and the other half on her next shift. A full clean required vacuuming the rooms, the corridors and foyer. She spent from two to four hours vacuuming.

The applicant tried to use a carpet extractor on at least one room every week, and this took about one to two hours.

About six to eight months after she started with the respondent, the applicant began to work solely in the laundry. She was required to wash and dry clothes and linen. There were about 163 beds. The only time she was not in the laundry was at the beginning and end of her shift, when she collected and filled laundry trolleys for about 30 minutes. Her usual shift was from 6am to 1:30pm.

The applicant’s team leader was Maree White. She believes Lindy Agalides became team leader when Ms White left, and after she stopped working. She believes Arthur Blandford is the current team leader. Neither was a team leader when she was still physically working for the respondent. Mr Blandford was a cleaner and never worked in the laundry when the applicant was there. Ms Agalides was initially a cleaner and did not work with Ms Fitzgerald until she injured her back in 2014. Ms Agalides then joined the applicant and Ms White in the laundry, as the applicant was put on light duties.

The laundry was split into a “clean side”, consisting of four industrial dryers, and a “dirty side”, holding four industrial washing machines. The two areas were divided by a wall. There was a big open archway, situated next to the machines on either side of the wall, between the rooms, without a door. The applicant believes a plastic door was installed after she left.

The dirty side was extremely noisy. The largest washing machine was about 6 to 6.5 feet high and held about 45 kgs of washing; two were about five feet high and held about 30 kgs; and the smallest was about 4.5 feet high and held about 20 kgs. They stood in a row. When a load finished, Ms Fitzgerald reloaded it. This continued through her shift. All four machines were almost always going at once, which was extremely noisy.

The washing machine cycles lasted about 45 minutes. The highest noise level was when they were on spin cycle. They spun for about 5 to 15 minutes. There were often two or more machines on spin cycle at the same time. The applicant had to shout to be heard above the noise when one machine was on spin cycle. Even when none was on spin cycle, it was still very noisy on the dirty side. She still had to raise her voice to speak to someone less than a metre away.

The applicant would push trolleys of washing straight to the machines, where she would sort it. This was both because there was no table, and to save time. Other machines would be operating while she was loading the machine that had finished. She was less than a metre away from the operating machines.

The clean side was less noisy, but still very noisy. It had four industrial dryers, all about six feet to seven feet tall, in a row. They operated all day, which meant the applicant stood in front of one dryer loading or unloading it while the other machines were operating. They were extremely busy, constantly loading and unloading machines all day.

When the applicant was not loading or unloading the machines, she stood at a table folding clean washing. It was about 1.5 metres from the two closest dryers and about two to three metres from the furthest dryers. While it was technically on the clean side, it was about three metres from the doorway to the dirty side, and the washing machines were right next to the doorway. As there was no door, the applicant was exposed to that noise while she was at the table. She had to raise her voice to speak with a co-worker less than one metre away.

The only time the applicant did not unload or load machines was when she was on light duties from 2014 to 2015. She also folded washing at a different table, which was in the clean area, but further from the doorway. She was still exposed to the noise of dryers and washing machines. The table was about 1.5 to 2 metres from nearest dryers, and about 6 to 7 metres from the doorway to the dirty side.

The applicant often spoke to Ms White and Ms Agalides about the noise in the laundry. They often joked that they would end up deaf. Ms Agalides said a few times, as a joke, “Julie, try and use your inside voice”, or similar words, because she could not hear what they were saying and spoke loudly or yelled over the noise.

The applicant would sometimes go to the maintenance shed, about 40 metres away, to speak to the maintenance department. She found this easier than calling them as she struggled to hear while talking on the phone in the laundry. She generally knew when it was time to walk back to the laundry because she could hear the washing machines switch to spin cycle.

Hearing protection was not provided during the applicant’s time with the respondent. In about 2014, a colleague from the maintenance department, “Roy”, walked around the laundry with a device in his hands. The applicant believed this was a noise-testing device. He approached her and Ms White and asked if anyone had told them they should be using hearing protection while working. They said they had not been told this and he responded words to the effect of “well, you should be.” Ms Fitzgerald never heard from him or management about the need for hearing protection after that.

The applicant first started to notice hearing loss in about 2017. She assumed it was age-related. She attended National Hearing Care at Toronto for a hearing test. They told her she was suffering some hearing loss and some of it might have been due to her work. They told her they would refer her to a lawyer about a potential claim for industrial deafness. She never heard back, or from a lawyer, so she assumed she did not have a viable claim for hearing aids. She could not afford them, so she figured she would have to wait until she was on the pension.

On 2 November 2018, the applicant attended Specsavers, because a friend mentioned she thought they sometimes allowed payment for hearing aids on a payment plan. She had a basic hearing assessment and was booked to see an audiologist on 13 November 2018.

The audiologist told the applicant they did not do payment plans. He asked a few questions, including about her employment history, but when she said she could not afford hearing aids he seemed to become disinterested in serving her. He suggested she speak to a lawyer about pursuing a claim to obtain hearing aids but did not refer her to anyone.

On 5 April 2019, the applicant attended National Hearing Care for another test. They asked about her employment history and told her she might be suffering from industrial deafness. They suggested she seek advice from Turner Freeman Lawyers.

The applicant attended Turner Freeman on 4 June 2019. She was advised that in order to submit a claim for industrial deafness she would be required to undergo examination by an ear, nose and throat specialist to determine if she had any hearing loss caused by her employment, and if so, how much. She left that in their hands.

It was at about this time that the applicant attended the laundry to collect some money from a nurse, to whom she had sold a handbag. Ms Agalides was there. The applicant stayed for about 20 minutes catching up with staff. She mentioned she had had a hearing test and was looking into a claim for industrial deafness.

Turner Freeman sent a formal written notice to the respondent on 23 July 2019 (this document is not in evidence). She did not know before consulting them that she was required to provide notice of her injury as soon as possible and before she left her employment. She did not even know she had industrial deafness, as she was unsure of the cause of her hearing loss.

Turner Freeman arranged for the applicant to be assessed by Dr Peter Macarthur on 11 September 2019. He told her she was suffering from industrial deafness. She did not know the cause of her hearing loss before this.

On 30 September 2019, Dr Macarthur provided a report confirming that the applicant had industrial deafness. Her solicitors sent her a copy and she discussed it with Ms Pearson by phone on 28 October 2019. She instructed Ms Pearson to make a claim for hearing aids, which she did on 29 October 2019.

The applicant has had previous injuries to her back and shoulders, and has made claims for weekly benefits, medical expenses and a lump sum. No one had advised her that she needed to provide notice of her injury within a certain period, or that failure to do so may lead to her claim being barred. She had told her employer about her injuries, so the issue did not come up.

The applicant has trouble hearing and understanding people when they are speaking from a distance, not directly facing her, or otherwise in group conversation or in the presence of background noise. When she goes out for coffee with friends, she feels embarrassed because she often has to ask them to repeat themselves.

The applicant’s husband complains that he has to repeat himself. She needs to have the subtitles turned on when watching television, which frustrates her husband. She suffers from ringing in her ears most of the time and has learned to put up with this. She regularly cares for six of her seven grandchildren and struggles to hear them. She would like to be fitted with hearing aids, as she believes they would greatly improve her quality of life.

Evidence of Maree White

Ms White’s statement is dated 16 June 2020.

Ms White was employed by the respondent from about 1995 to 2015. She worked in the laundry and was promoted to team leader after a number of years. She took six months off work in 2015 and went back to work on light duties for a couple of months before being let go.

Ms White was the applicant’s team leader for the entire period of her employment. While
Ms White had always been employed in the laundry, she occasionally helped with the cleaning. This meant she occasionally used a carpet extractor, which was extremely noisy.

Ms White’s evidence about the laundry set up confirmed that of the applicant. She estimated she and the applicant put on about eight loads of washing a day, which meant all eight machines were reloaded about eight times.

The washing machines were large industrial machines and were very noisy. The dirty washing was in trolleys. To save time, Ms White would pull them over to the machines and sort the washing at the machines while loading them. She and Ms Fitzgerald would need to shout to talk over the machines while sorting and loading the washing.

Ms White’s evidence about exposure to noise from washing machines is consistent with the applicant’s statement. She also stated that she could hear when the machines switched to the spin cycle from the maintenance shed. The industrial dryers were also very noisy. While they were loading them, they would need to raise their voices to be heard.

Ms White stated that there was an archway dividing the dirty side and the clean side. It was about five steps from the table where they folded washing. While they did this, they were still exposed to both the noise of the washing machines and the dryers. There was no doorway to block the noise from the dirty side. Hearing protection was not provided.

Ms White also recalled Roy coming to the laundry to test noise levels. She does not recall exactly when it was, but she and the applicant were there at the time. She never saw a report or heard anything further.

Ms White has had a hearing test that showed she had some hearing loss. She had not been told whether it is work related.

Respondent’s Factual Evidence

The respondent’s People and Culture Coordinator, Ms Dawn Davison, advised GIO on 4 August 2019 that the applicant’s period of employment was from 22 December 2011 to 7 July 2017.

No noise testing had been conducted during the applicant’s employment, but it was performed on 6 August 2019. There had been no concerns raised about noise levels. At the time of Ms Fitzgerald’s employment, the respondent was not aware of the applicant wearing or requiring hearing aids.

The testing on 6 August 2019 was performed by Mr Shane Wright, WHS Coordinator, using a mobile phone app. He determined the average noise level to be 75dB in the washing machine room. He described this as a low level noise average. Two staff, one of whom had worked in the laundry for four years, had recently undergone audiometric testing, showing no hearing loss.

Lee Kelly Commercial Investigations

Lee Kelly reported on 19 December 2019.

Statements were provided by Mr Blandford, Ms Agalides and Mr Wright.

Mr Blandford and Ms Agalides advised that the only machinery noise to which the applicant was exposed was from four industrial washing machines and four industrial dryers. They both indicated the washing machines were significantly louder, but neither believed the applicant was exposed to excessive noise. Mr Blandford stated that “you could easily talk in front of [the dryers] without raising your voice much”. It was necessary to raise his voice to talk when the washing machines were spinning, but he would not describe them as particularly loud. They tended to move away a little to talk, but “you don’t have to yell”.

Mr Blandford estimated that the applicant spent about 33%, and no more than 50%, of each shift in the dirty room; and Ms Agalides estimated that she spent approximately 20% of each shift in that room. They agreed that the washing machines are not particularly loud on a washing cycle but are somewhat louder during the spin cycle. Ms Agalides estimated that each machine is on spin cycle for no more than a third of each wash.

Mr Blandford stated that he was the applicant’s supervisor from approximately some time in 2017. I note that Ms Fitzgerald was still employed at that stage but had not attended work since 2015. Mr Blandford therefore never supervised her actual work activities.

Mr Blandford stated that the applicant worked only in the laundry and was not exposed to any other machinery noise whilst working. This is not correct, as she had also worked as a cleaner. He stated that hearing protection is available, that is either ear plugs or earmuffs, from the maintenance department. He is not aware of any formal information being provided to workers, “but it is common knowledge that we can get it if we want”. They are not instructed that they must use hearing protection.

Mr Blandford could not recall the applicant mentioning she was having issues with her hearing or requesting hearing protection. Once again, I note that he did not become the applicant’s supervisor until 2017, well after she ceased work. He would not have felt that hearing protection was necessary when working in the laundry.

Ms Agalides stated that she worked with the applicant from the time she (Ms Agalides) commenced employment until the applicant resigned on 7 July 2017. They were friendly and met for coffee a couple of times, and she is a Facebook friend of the applicant. She initially worked as a cleaner, but went into the laundry in about 2013, from which time she worked with the applicant. Maree White was their team leader. Ms Agalides was never the applicant’s team leader.

Ms Agalides was not aware of the applicant having any issue with her hearing when she worked with her. The laundry is noisy when the washing machines are spinning, particularly when all four are spinning at the same time, but Ms Agalides would not have thought it was loud enough to cause ear damage, unless they were perhaps exposed to constant spinning, which they were not.

Ms Agalides believes the applicant would not load the dryers, as she was on light duties due to a back injury. She loaded the washing machines “on the odd occasion”, but either Maree or Ms Angelides did it most of the time. In her opinion, the dryers are not too noisy. They could talk easily in front of them and did not have to raise their voices.

Ms Agalides stated that at the start of the day all four washing machines would be in use. The noise travelled through to where they were folding, particularly when they were spinning. There was no plastic curtain between the clean and dirty areas, so the noise travelled relatively easily. In the last year or so, a curtain had been placed there so when you are in the clean area the noise is a lot quieter. Even before it was installed, the noise was not excessive, but they would have to raise their voices when the machines were spinning.

Ms Agalides stated that there were usually at least a couple of machines going at any time. She estimated they spent approximately 20% of the shift in the dirty area and 80% in the clean area, folding and delivering linen etc. She therefore estimated that they were exposed to the sound of washing machines for something like 90 minutes of each seven-hour shift. She estimated exposure to spinning as about 30 minutes each day.

Ms Agalides believed hearing protection would be available if it was requested, but she has never known anyone to use it in the laundry. They have never been instructed to use it. To her knowledge the applicant made no complaint about exposure to excessive noise while working. She talked very loudly but Ms Agalides never got the impression she was suffering hearing loss. She has had a hearing test at Specsavers which indicated her hearing was “normal”.

Mr Wright stated that he has never met the applicant. He conducted noise level tests on 6 August 2019, the day he became aware of her claim, using the dB Meter app on his iPhone.

Mr Wright conducted the first test in the dirty section when all four machines were operating. One was on spin cycle. From directly in front of that machine, her obtained a reading of 88 to 90dB. He believed it would be louder if more of the machines were on spin cycle but understands it would be unusual for all four to be on spin cycle at the same time.

Mr Wright then tested the noise level at a table about three metres in front of the washing machines, where employees sort washing. The reading was 84dB, with three machines on wash cycle and one on spin cycle.

Mr Wright also took a sound test from the clean room. The dryers were not operating, but the sound from the washing machines could be heard. Once again, three machines were on wash cycle and one was on spin cycle. The average noise level was 72dB.

According to Mr Wright, he has observed that workers do not spend protracted periods in the dirty area. They are “in and out” numerous times a day and he does not believe they are there for more than about 15 minutes continuously.

Mr Wright is not aware of any worker requesting hearing protection to work in the laundry or complaining about the noise level. He is also not aware of any other employee alleging having suffered hearing loss as a result of their duties at Adventist Senior Living.

Report of Day Design Pty Ltd

Day Design Pty Ltd (Day Design), consulting acoustical engineers, reported to GIO on 14 January 2020. The report was prepared by Mr Adam Shearer.

Mr Shearer reported having obtained information about the applicant’s work from
Ms Davison, Mr Blandford, Ms Jenny Pinkerton and Ms Agalides. He noted that during her time in the laundry, the applicant may have been exposed to noise from four industrial washing machines and four industrial dryers. During her time as a cleaner, she may have been exposed to noise from a carpet extractor.

Mr Shearer estimated the applicant’s work week as 35 hours per week, averaging 8.75 hours per day. He believed this was an overestimate of the duration of her noise exposure.

Mr Shearer concluded there was clear evidence to refute the history obtained by
Dr Macarthur that the applicant was exposed to noisy working conditions and exposed to very loud noise for up to seven hours per day (in an eight hour shift), five days per week.

In section 8 of the report, Mr Shearer calculated the applicant’s Normalised Daily Noise Exposure Level (NDNEL) in the laundry, over a period of 8.75 hours, was 72dBA; and operating the carpet extractor and working in the laundry over a period of 8.75 hours, was 73 dBA. He averaged these calculations at 73dBA.

Mr Shearer clarified that he did not mean to infer that the pattern of use he had utilised would apply on any one day. It was probable that on any one day Ms Fitzgerald would carry out some activities for longer or shorter periods. He was however of the opinion that averaged over 5.5 years of employment, the noise-exposure periods on which he relied would be typical. He regarded the NDNEL as a conservatively high figure, as further noise breaks were probable. These included waiting for laundry, receiving instructions, social interactions etc.

The report stated that the applicant was subject to NDNEL of not more than 73dBA, with Lpeak impact levels typically not more than 105dBC, during 5.5 years of employment with the respondent. Mr Shearer noted that none of the measured noise levels in section 8 exceeded the safe noise exposure limits specified by the various occupational health and safety regulations, to which he referred in section 9 of the report.

Mr Shearer reported that impact noise levels of 89 to 105dBC were measured. They are below the safe legislated limit of 140dBC and hearing impairment would not normally occur.

The report concluded that the applicant’s NDNEL was not more than 73dBA, which is less than the limit of 85dBA allowed by the NSW Work Health and Safety Regulation 2017.
Mr Shearer was of the opinion that the respondent was not a noisy employer; and “the work carried out by Mrs Julie Fitzgerald while employed with Seventh Day Adventist Aged Care (North NSW) is not of a nature that could cause an injury of the type suffered by her, even without the use of hearing protection.” (emphasis in original).

Medical evidence

Dr Peter C Macarthur - Ear, Nose and Throat Surgeon; Head and Neck Surgeon

Dr Macarthur reported first on 30 September 2019.

Dr Macarthur recorded an approximate 10-year history of slowly increasing deafness, particularly in the presence of background noise. Over the past five to six years, the applicant had a recurring “ticking” right sided tinnitus, which had been present for four months. There was no past history of severe head injury or ototoxic drugs. There had been no recreational noise exposure and Ms Fitzgerald had never been close to an operating chainsaw or rifle fire.

The applicant’s occupational history accorded with her evidence. From 2011 to 2015, she was exposed to noisy working conditions. There was the noise of about four industrial washing machines and four industrial dryers that operated at the same time. At the start of her employment the applicant was also exposed to the noise of carpet extractors. During that portion of her employment, she was exposed to very loud noise for up to seven hours per day, five days per week.

Dr Macarthur concluded that the applicant was suffering from a bilateral high tone sensori-neural deafness, which was due to exposure to loud noise in her work for the respondent from 2011 to 2015. He opined that her employment was of the nature whereby its tendencies, incidents and characteristics gave rise to a material risk of noise induced hearing loss. The applicant had 10.7% binaural hearing loss (BHL), which equated to 6% whole person impairment (WPI).

Dr Macarthur believed it was reasonably necessary for the applicant to have binaural digital hearing aids. She would be reasonably assisted by the provision of such hearing aids, as a reasonable form of treatment, arising from the hearing loss she had suffered in the course of her employment.

On 26 November 2020, Dr Macarthur provided a supplementary report. He had been asked to comment on the report of Dr Sylvester Fernandes, who was qualified by the respondent. He denied that his audiologist is a hearing aid provider and said she does not make recommendations with regard to hearing aid providers. There were no “conflict of interest issues”.

Dr Macarthur reported that speech reception threshold may or may not be significantly affected in an audiogram performed on a patient with Ms Fitzgerald’s hearing loss, because it is performed under soundproof conditions. There is a lot of background noise “in the real world”, which is the reason for recommending hearing aids in most patients.

Dr Macarthur disagreed with Dr Fernandes in excluding hearing loss at 2000hz and confirmed his calculation of 6% WPI. He noted that neither he nor Dr Fernandes had found another cause for the applicant’s hearing loss.

Finally, on 22 February 2021, Dr Macarthur was asked to consider Day Design’s report, the factual investigation and the applicant’s statement. His opinion was unchanged. He still considered hearing aids to be reasonably necessary, because the applicant’s hearing loss is in the high tones and moderately severe, meaning she will have considerable difficulties hearing conversation in a crowd, hearing people from one room to another, and will find that even one-to-one, any background noise cuts out her ability to hear normally. She has right sided tinnitus that is likely to be helped by a hearing aid.

Dr Sylvester Valentine Fernandes – Ear, Nose, Throat and Facial Plastic Surgeon

Dr Fernandes was qualified by the respondent and reported on 27 February 2020.

Dr Fernandes recorded a consistent employment history. The applicant had not worn ear protection in very noisy situations. There was no history of exposure to noisy hobbies; organic solvents; ear disease or surgery; significant head injury; family history of deafness; exposure to ototoxic medication; afflictions affecting hearing; or military service.

The applicant had been exposed to “Industrial washing machines x 5, Industrial dryers x 4”. Dr Fernandes noted that typical noise levels for such exposure, found in several sectors of a hospital laundry, were between 70 and 101dBA.

Dr Fernandes recorded a history of gradual, progressive and bilateral hearing impairment for approximately nine years. The applicant had had constant tinnitus for two years. It disturbed her sleep and interfered with the activities of daily living. The applicant had difficulty understanding conversation in the presence of background noise, had the television turned up to the discomfort of others and had difficulty understanding on the telephone.

Dr Fernandes diagnosed noise induced hearing loss in the treble frequencies and an excess loss of uncertain origin (non-occupational) in the upper middle frequencies. In making his assessment, he took into account:
·        the type and duration of noise exposure (immission levels)
·        the mode of onset and progression
·        the shape of the audiogram
·        the presence of a dip or “bulge” around 4 KHz
·        the clinical picture
·        that there were no competing diagnoses and complications
·        the range of frequencies affected by hearing loss
·        the degree of hearing loss at individual frequency, particularly those involved in speech reception
·        the higher frequencies being mainly concerned with intelligibility
·        that hearing aid assessment cannot be based solely on total percentage losses

Dr Fernandes did not include frequencies below 3 KHz in his calculation because the applicant’s historical noise exposure was not “suitable or sufficient” to cause a noise induced hearing loss at these frequencies, because the cumulative immission levels were not high enough to involve them. He assessed 7% BHL, which equated to 4% WPI.

Dr Fernandes gave his opinion on noise surveys, having been provided with the report of Day Design. He did not consider noise surveys as probative. His reasons were:
·        their general objectives appeared to be essentially prescriptive
·        their unsuitability for medicolegal compensation, due to them only providing a “snapshot” of the noise climate at a particular time and short measurement periods not being representative of the entire shift and not being correct with a good degree of certainty
·        the need for approximations and estimates
·        acoustically untrained persons are prone to subjective responses regarding what they consider to be significant
·        an operator using a variety of tools/machines may be subject to different items of equipment for different periods from day to day
·        sound meters employ integrating-averaging techniques providing a LAeq8h that ignores noise characteristics
·        the effect of exogenous factors such as inhalant chemical agents and vibration may contribute to hearing loss
·        some workers will develop noise-induced hearing loss when exposed to a lower level than 85dBA over eight hours (“egg shell skulls”)
·        the use of physico-mathematical modelling in noise surveys bears little relation to biological reality and masks the poor quality of experimental data with misleadingly precise calculations of risk

Dr Fernandes summarised his opinion by saying a noise survey, for medicolegal compensation purposes, is superfluous and serves no probative purpose in an individual case, if a definitive factual history of industrial noise exposure is available. Noise surveys serve only for planning/applying noise reduction and control measures.

Dr Fernandes disagreed with Dr Macarthur’s assessment, as he used higher thresholds based on an audiogram provided by a hearing aid clinic. He regarded this as a conflict of interest.

Dr Fernandes opined that hearing aids were not reasonably necessary as a result of the compensable injury as, in the audiogram he obtained, it appeared that speech reception frequencies were not significantly affected. Such a level of loss should not interfere with an individual’s activities of daily living. Subjective functional complaints are veneered by psycho-socio-economic factors. The speech reception thresholds in the applicant’s case were 90% at 65dB on each side.

SUBMISSIONS

The applicant’s submissions have been recorded, and she has provided written submissions in reply to the respondent. The respondent has filed written submissions. I will therefore provide only a summary of the submissions.

Applicant

The applicant submitted that she and Dr Macarthur have identified the respondent as her last noisy employer. She referred to her own evidence and that of Ms White, who was her team leader for the entire time. It is important that Mr Blandford and Ms Agalides were not her team leaders, as the respondent relies on their evidence. Mr Blandford was her supervisor from 2017, but her last shift was in 2015.

The applicant referred to the evidence that there was no door between the clean and dirty sides of the laundry when she was employed. Day Design’s testing was done in 2020, many years after she left, and once the door was installed.

The applicant submitted that the dirty side of the laundry was extremely noisy. The spin cycle was the noisiest, which was borne out by the studies. She had to raise her voice to speak to someone less than a metre away, even when none of the machines was on spin cycle. She submitted that for almost three years she was exposed to significant and persistent noise.

The applicant referred to Dr Macarthur’s evidence that her employment had the tendency, incidents and characteristics that gave rise to a material risk of industrial deafness. She need not show that the employment actually caused her hearing loss. Dr Fernandes also found that she had occupational hearing loss. He and Dr Macarthur appear to agree as to the last noisy employer.

The applicant submitted that I would not accept Mr Wright’s evidence but would accept her and Ms White’s evidence. They were exposed to noise from both rooms. Mr Wright did not deal with the plastic door, say whether it was open or closed, or where the level was tested. The test has little probative value, having been done on an iPhone. He does not know and has never met the applicant. He does not hold himself out as an expert in noise testing. There is no evidence as to the reliability of the app.

The applicant submitted that Day Design’s testing was done many years after she left. It is not known whether the situation was still the same. Its probative value is flawed. I would have to give Day Design’s report little weight when the respondent’s own expert says it is virtually worthless.

The applicant submitted that a lot of Ms Agalide’s evidence confirmed her evidence.
Ms Agalides does not believe the noise was sufficient to cause hearing loss. This is not a matter for lay evidence, but expert evidence. Dr Macarthur has reviewed all the evidence.
Dr Fernandes has listed the documents to which he had access, and which we can assume he has read.

The applicant submitted that all the evidence has established that her employment with the respondent had the tendency, incidents and characteristics as to give rise to a real risk of her suffering industrial deafness. There is no evidence of other noisy employment and there is evidence of noise-induced hearing loss.

As to the reasonable necessity of the provision of hearing aids, there are two different opinions. The applicant referred to Dr Macarthur’s evidence. She submitted that this goes to the quality of her life. Dr Fernandes opined that she was not significantly affected, not that she was not affected. It is hard to know what he means by psycho-socio-economic factors. The applicant’s evidence is that her condition does interfere with and affect her quality of life. Dr Fernandes does not say hearing aids are unlikely to help her. He is suggesting she should just be putting up with it.

The applicant submitted that this is not a difference of opinion that I cannot resolve.
Dr Fernandes did not take into account her experience of her hearing loss. She referred to Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) in respect of the factors to be taken into account in determining the reasonable necessity of medical treatment. Hearing aids don’t need to be absolutely necessary, just reasonably necessary. Dr Fernandes did not say they were not appropriate.

As regards “notice” and “claim”, the applicant submitted that she did not understand that she had a compensable injury until she obtained legal advice, had an audiogram and was given advice by Dr Macarthur. It is not straightforward. Her “journey” is explained in her statement. She relies on the decision in Unilever Australia Ltd v Petrevska [2013] NSWCA 373 (Petrevska).

Respondent

The respondent submitted that the conditions in the laundry were described in the statements of Mr Blandford, Ms Agalides and the report of Day Design.

The respondent disputes the applicant’s claim on the bases that it was not a noisy employer, as required by section 17 of the 1987 Act; that it was not the last noisy employer; and that she failed to give notice of injury or make a claim within the time prescribed by sections 254 and 261 of the 1998 Act.

The respondent submitted that the evidence required to establish noisy employment for the purposes of section 17 of the 1987 Act was discussed in Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson), where it was held [at 44]:

“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness.”

The reference to the “tendency, incidents or characteristics” of employment is a reference to the decision of the Court of Appeal in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley). The respondent submitted that Lobley has long been accepted as authority for the proposition that in a claim for industrial deafness, a worker must prove, by way of accepted evidence of the nature and extent of exposure to noise, that the “tendency, incidents or characteristics” of his or her employment were such as to give rise to a real risk of industrial deafness”.

The respondent submitted that the test is whether the noise level in the applicant’s employment is sufficient to create a real risk of loss of hearing: Callaby v State Transit Authority (NSW) (2000) 21 NSWCCR 216 (Callaby). In Callaby, Neilson CCJ considered that a noise level of over 85dBA LAeq would involve a real, not a theoretical, risk of inducing deafness, but noise level below that would not. His honour noted that not only the level of noise, but its duration, is relevant in determining whether an employment involves a risk of deafness. He found the fact that the worker’s exposure to a noise level of 81dBA LAeq was not sufficient to give rise to a real risk of deafness. Regulation 56 of the Work Health and Safety Regulation 2017 provides that the exposure standard for noise means exposure of 85dBA for eight hours a day.

The respondent submitted that the applicant does not rely on noise level studies, but the respondent does. It relies upon Mr Wright’s statement and the readings he took; and the noise exposure studies conducted by Day Design. The author of the report has set out the readings taken at various locations, set out in Table 3. The respondent submitted that in not one location was the LAeq reading more than 80dB and the Lpeak more than 105dB. This includes the carpet cleaning using the carpet extractor referred to by the applicant in her statement. The respondent submitted that therefore the noise levels to which the applicant was exposed in the course of her employment with the respondent were not sufficient to involve a real risk of injury.

The respondent submitted that Day Design’s report concluded that the NDNEL to which the applicant was exposed was not more than 73dBA. The noise studies were not challenged by the applicant as to the duration spent doing each task, or the noise level readings. The only challenge was that the studies were done five years after the applicant left the respondent’s employ; and that it did not refer to the plastic curtain separating the clean and dirty areas.

The respondent submitted that there is no evidence as to when the plastic curtain was placed between the areas. Equally, there is no evidence that the applicant was exposed to the noise level in the area where the washing machines were housed for eight hours a day. She would only go into the dirty area to load the machines, and then unload them when the wash was finished. She would then load the machines again, leave the area and spend much of her time in the clean area.

The respondent submitted that the Commission ought to find that the applicant was not exposed to noise of a sufficient level, and particularly duration, as to be a real risk of injury. It referred to Dr Macarthur’s report dated 22 February 2021, in which after considering the noise exposure studies of Day Design, he opined that he still considered that the tendency, incidents or characteristics of the applicant’s employment with the respondent were such as to give rise to a real risk of industrial deafness. The respondent submitted that this was despite the fact that according to the studies, the applicant was not exposed to sufficient noise to give rise to a real risk of industrial deafness, and Dr Macarthur has given no reasons for coming to this conclusion. His opinion should therefore be given no weight.

The respondent submitted that the opinion of Dr Fernandes that hearing aids are not reasonably necessary should be accepted, particularly as he has given cogent reasons for his opinion.

As regards the application of sections 254 and 261 of the 1998 Act, the respondent submitted that section 17 of the 1987 Act modifies section 254 to the extent that notice of injury is not required to be given as soon as practicable after the injury happens and before the applicant voluntarily leaves the respondent’s employ.

The respondent submitted that the claim for hearing aids was made some 4.5 years after any injury was suffered. However, it was made clear in Petrevska that an injury is taken to have been received when the worker first became aware of it. The Court held that awareness involves not only awareness of the injury as such, but also of its connection to the employment.

In the applicant’s case, this awareness did not occur until receipt of Dr Macarthur’s report dated 30 September 2019 and she received advice from her solicitor. Her claim was made on 29 October 2019. The claim was therefore within time.

The respondent submitted that there ought be an award for the respondent.

Applicant’s Submissions in Reply

In respect of “noisy employment”, the applicant submitted that the absence of expert evidence as to noise levels will not be fatal to a worker’s claim, if the worker’s subjective evidence is supported by the evidence of a medical practitioner: Costello v Citra Constructions Ltd & Ors (1989) 22 FCR 246 at 253/4; Dawson [at 42-43]. In this case, there is the subjective evidence of the applicant, the witness, Ms White, and the evidence of two qualified expert medical specialists.

The applicant submitted that both Dr Macarthur and Dr Fernandes concluded that the employment conditions in which she was working, particularly the laundry, was employment to the nature of which the injury was due, as it had the tendency, incidents or characteristics to give rise to a real risk of industrial deafness. It is not necessary for her to prove that the employment brought about or contributed to the disease: A & G Engineering Pty Ltd v Citivarese (1996) 41 NSWLR 41.

The respondent criticised the opinion of Dr Macarthur because, it submitted, he did not provide any reasons for his finding of “noisy employment”. The applicant referred to his report dated 30 September 2019 and his conclusion. In his third report, he reviewed and considered the noise study, the factual investigation, Dr Fernandes’ report and the applicant’s statement. He confirmed his opinion as to causation.

The applicant submitted that the Commission can have confidence that Dr Macarthur has considered all relevant material and based his opinion on the material and his expertise. Furthermore, his opinion is concordant with that of Dr Fernandes. Dr Fernandes identified the respondent as the relevant last noisy employer; and the source of her industrial deafness was the industrial washing machines and dryers.

It was submitted by the respondent that the applicant was not exposed to noise for long enough to cause industrial deafness, that is, eight hours. The applicant submitted that this submission was contrary to the expert evidence of Dr Fernandes.

The applicant submitted that, in any event, her evidence is that for about three years, she was working solely in the laundry and was exposed to constant noise from the washing machines and dryers, all day, and because the rooms adjoined, the noise from one room went into the other. This evidence is supported by that of Ms Agalides and Ms White. The evidence of Mr Blandford ought not be accepted as he was not the applicant’s supervisor at the material time and worked on another floor.

The applicant submitted that both noise tests are flawed. The tests undertaken by Mr Wright ought to be rejected outright. There is no evidence as to his expertise or qualifications, or what training he has undertaken, and no expert evidence to comment on the reliability of a test conducted using an iPhone app. He carried out the test in 2019, five years after the applicant left employment. The actual measurements are not provided, but only an average. The acoustic tests ought to be rejected, for the extensive reasons set out by Dr Fernandes.

The applicant submitted that the opinion of Dr Macarthur ought to be preferred to that of
Dr Fernandes. She referred to Dr Macarthur’s opinion as to the reasonable necessity of hearing aids. He has addressed the matters as to “reasonable necessity” set out in Diab. He has addressed the practical realities of the real world and the reasons why someone such as Ms Fitzgerald would benefit from hearing aids. Dr Fernandes considered her level of loss “should not interfere with an individual’s activities of daily living”. However, the applicant’s evidence is that she is struggling with her hearing loss in her everyday activities.

SUMMARY

The applicant seeks an award pursuant to section 60 of the 1987 Act for the provision of hearing aids.

The respondent disputes liability for hearing aids on several bases, which I will address in turn. It is appropriate first to address the issues of “notice” and “claim”, as if the applicant did not give notice of injury or make a claim within the requisite time periods, her claim would fail, without the necessity to consider the remaining issues.

Notice and Claim

The respondent properly and fairly conceded that the applicant has made her claim in time, pursuant to section 261 of the 1998 Act.

It was held in Petrevska by Macfarlan JA (Meagher JA and Tobias AJA agreeing) that the cause of a worker’s gradual hearing loss will ordinarily be a fact of which she is not “aware” until she receives medical advice. She may have had an opinion or belief that her hearing loss was related to her employment (and there is evidence in this case that the applicant,
Ms White and Ms Agalides joked about the noise at work making them deaf), but that is not sufficient. The “high level of assurance required for ‘awareness’ of its correctness will ordinarily require expert advice” (at [25]); and “the opinion of a medically unqualified worker about the cause of sensorineural hearing loss will rarely be of value, or amount to knowledge that his or her hearing loss has been caused by the worker’s noisy employment” (at [34]).

The applicant was not “aware” that she may have sustained an injury until she obtained the expert evidence of Dr Macarthur. Her legal advisers then made a claim on her behalf, approximately a month after the report became available. The claim was accordingly made in time.

As regards notice of injury, I observe that section 17(1)(b) of the 1987 Act provides that the provisions of section 61 of the 1998 Act shall apply to an injury which is a loss, or further loss, of hearing, as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom. However, section 61 of the 1998 Act does not apply to the applicant’s claim. It applies only to injuries received before the commencement of the section, as inserted by the Workers Compensation Legislation Amendment Act 2001.

The applicant is subject to the “New Claims Procedures” in Chapter 7 of the 1998 Act. The relevant section with respect to giving notice of injury is section 254. In what appears to be an oversight, the 1987 Act does not refer to this section.

In any event, section 254(2) of the 1998 Act provides that the failure to give notice of injury as soon as possible after the injury happened and before the worker has voluntarily left the employment in which she was at the time of the injury is not a bar to recovery of compensation if it is found that there are special circumstances.

“Special circumstances” includes that the failure to give notice of the injury was occasioned by “ignorance, mistake, absence from the State or other reasonable cause” (section 254(3)(b)).

The applicant was “ignorant” in that she did not know she may have sustained injury, for the same reason that she was not “aware” of the injury. Notice of injury was given in time.

Injury

Section 17 of the 1987 Act provides:

“(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect--
(a) for the purposes of this Act, the injury shall be deemed to have happened--
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due--at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury--on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words "as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury" were omitted therefrom,
(c) compensation is payable by--
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury--that employer, or
(ii) where the worker was not so employed--the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e) in paragraph (d), the
“relevant period” means--
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)--in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury--in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii) where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury--in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,

(f) where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g) where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.

(2) Without limiting the generality of subsection (1), the condition known as "boilermaker's deafness" and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.

(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”

The applicant does not have to establish that her employment caused her to suffer industrial deafness. She need only establish that it had the tendency, incidents or characteristics such as to give rise to a real risk of industrial deafness – Lobley.

The respondent disputes that it was a “noisy employer”, and that it was the applicant’s last noisy employer. The injury is deemed to have occurred on 6 March 2015, which is the last date on which the applicant performed any work for the respondent. It is her last employer, as she ceased work due to a back injury and has had no further employment.

The applicant has given detailed evidence about her exposure to noise, both while she worked as a cleaner and when she worked in the laundry. This evidence is confirmed by
Ms White, who was her team leader for the entire period of her employment. Ms White worked in the laundry, but also occasionally helped with cleaning. Both women gave evidence that the washing machines could be heard from the maintenance shed some
40 metres away, and they had to raise their voices to be heard by a co-worker (the applicant’s evidence is that these people were less than a metre away).

The applicant’s evidence is that she, Ms White and Ms Agalides joked about the noise in the laundry. There were two rooms, known as the dirty room and the clean room, which were divided by an archway, but there was no doorway during the applicant’s time in the laundry. At some unknown stage (Ms Agalides said it was in the last year or so), a door was installed between the rooms.

The respondent relies in part on the evidence of Ms Agalides and Mr Blandford. However, neither was ever the applicant’s team leader while she was at work. Mr Blandford became her team leader in 2017, well after her last day at work.

I prefer the evidence of Ms White to that of Ms Agalides and Mr Blandford. She is the lay witness who is best placed to give evidence about conditions in the laundry and has also worked as a cleaner.

However, even Mr Blandford conceded that workers need to raise their voices to talk when the washing machines are spinning. They tended to move away a little, but “you don’t have to yell”. Ms Agalides also gave evidence that they would have to raise their voices when the machines were spinning. She conceded that the laundry is noisy when the washing machines are spinning but did not think it was loud enough to cause ear damage. This is not a conclusion she is qualified to draw.

The noise level testing is of little or no probative value.

Mr Wright conducted a test using an iPhone app. As the applicant submitted, there is no evidence as to his expertise or qualifications, or the reliability of a test carried out using an app. He has never met the applicant. He stated that the workers are “in and out” of the dirty area numerous times a day, but he has no knowledge of the conditions when the applicant was employed. Apart from these issues, the test was carried out over four years after the applicant ceased work. There had been a change in the working conditions, at least by the installation of the door between the rooms.

The report of Day Designs suffers from the same defect, in that its testing was performed years after the applicant ceased work and after a change in the work environment. However, Dr Fernandes, who was qualified by the respondent, has been far more expansive and eloquent in his criticism of the report, describing such reports as superfluous and serving no probative purpose in an individual case, where a definitive factual history is available. I accept that in this case, such a factual history was available.

The applicant did not need to rely on noise level testing. She has expert evidence from
Dr Macarthur, and Dr Fernandes that satisfies the requirements referred to in Dawson.

Dr Macarthur and Dr Fernandes agree that the applicant has industrial deafness, and the respondent was her last relevant employer. They differ only on their assessments of WPI and their opinion as to the reasonable necessity of the provision of hearing aids.

Dr Macarthur opined that applicant’s employment with the respondent was employment to the nature of which the disease of boilermaker’s deafness is due, that is, it was of the nature whereby its “tendencies, incidents and characteristics” gave rise to a material risk of noise-induced hearing loss.

Dr Fernandes opined that the respondent was “noisy” and it was the relevant last employer, that is, on the balance of probabilities the employment had the necessary “incidents, tendencies and characteristics” so as to give rise to a real risk of a person suffering noise-induced hearing loss therefrom.

Both experts had access to the lay evidence, including the results of the noise level testing. The respondent is critical of Dr Macarthur’s evidence that his opinion was unchanged by the noise level studies because he has not given reasons for his conclusion. I do not accept that submission, as he has clearly stated that he had “considered in some detail” the material provided to him. In any event, Dr Fernandes, who is the respondent’s expert, has provided extensive reasons why, as the applicant submitted, the noise surveys were virtually worthless.

I accept the applicant’s evidence; prefer the evidence of Ms White to that of Ms Agalides and Mr Blandford; give little or no weight to the noise level studies; and the expert evidence of both the applicant and the respondent is in agreement as to injury.

I therefore determine that the applicant has sustained hearing loss arising out of or in the course of her employment with the respondent. The respondent was her last employer in employment to the nature of which the injury was due.

Medical Expenses

The applicant claims that the provision of hearing aids is reasonably necessary medical treatment. This is disputed by the respondent. The applicant has submitted that I may determine this dispute, while the respondent has submitted that, should I determine that the applicant has sustained injury, the dispute as to the provision of hearing aids should be referred to a Medical Assessor.

Section 60 of the 1987 Act provides:

“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

Note : Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are—
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted--the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.

(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b)the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.

(2B) The worker's employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following--
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d)establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
“appropriately qualified” for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).

(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

Section 321 of the 1998 Act provides:
“(1) A medical dispute (other than a dispute concerning permanent impairment of an injured worker) may be referred for assessment under this Part by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute. The President is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the medical assessor who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the President is to choose the medical assessor who is to assess the dispute.”

Section 326 of the 1998 Act provides:

“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned--
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

A Medical Assessment Certificate (MAC) issued by a Medical Assessor in respect of this dispute would not be conclusively presumed to be correct. The dispute may still need to be determined by the Commission, should either party not accept the MAC.

It seems to me that the applicant should not be subjected to further delay in the resolution of this dispute, and it is appropriate that I determine it. Most disputes regarding the reasonable necessity of medical treatment are determined without referral to a Medical Assessor for a non-binding opinion.

In the matter of Diab, Deputy President Roche discussed the authorities relating to section 60 of the 1987 Act. Roche DP said “it is not simply a matter of asking, as was suggested in Bartolo, (Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233) is it better that the worker have the treatment or not” (at [90]).

Roche DP held (at [88]) that the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose), that is:

(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

Roche DP said that while the above were “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204).

Dr Macarthur opined that the applicant would have considerable difficulty hearing conversation in a crowd, from one room to another, and even in a one-to-one situation, as background noise affects her ability to hear normally. Her right sided tinnitus is likely to be helped by a hearing aid. There is a lot of background noise in the “real world”, which is why hearing aids are recommended for most patients.

Dr Fernandes recorded that the applicant’s tinnitus disturbed her sleep and interfered with the activities of daily living. In addition to the matters she referred to in her evidence, she had difficulty understanding conversations on the telephone.

However, Dr Fernandes opined that hearing aids were not reasonably necessary as it appeared, in the audiogram he obtained, speech reception frequencies were not significantly affected. Such a level of loss “should not” interfere with activities of daily living. I do not know what Dr Fernandes meant by subjective complaints being “veneered by psycho-socio-economic factors”.

Taking into account the matters referred to in Rose:

(a)     Dr Macarthur and Dr Fernandes disagree as to whether the treatment is appropriate for the applicant, but the provision of hearing aids is appropriate treatment for loss of hearing;
(b)     there is no alternative treatment;
(c)     the cost of the treatment is modest, although not to the applicant, and the respondent does not submit that cost is an issue;
(d)     Dr Macarthur believes the treatment would be effective, while Dr Fernandes does not say it would not be effective, but rather that the applicant’s level of loss is not sufficient for her to require it, and
(e)     Medical experts would accept that hearing aids are an appropriate form of treatment for hearing loss and likely to be effective.

As the applicant submitted, while Dr Fernandes believes the level of her hearing loss should not interfere with her activities of daily living, her evidence is that it does. It interferes with such ordinary activities as meeting friends for coffee; talking on the telephone; watching television with her husband; and interacting with her grandchildren. Dr Macarthur believes hearing aids would help with her tinnitus. Her evidence is that she has “learned to put up with this”, but there seems no good reason why she should have to do this if there is treatment available that may alleviate it. Dr Fernandes has not commented on whether hearing aids would assist with the applicant’s tinnitus. The applicant has to live in the “real world”, with its attendant background noise.

On balance, I am persuaded by the evidence of the applicant and Dr Macarthur, whose evidence I prefer on this issue to that of Dr Fernandes, that the provision of hearing aids is reasonably necessary medical treatment; and I make that determination.

I therefore determine that the respondent is to pay, pursuant to section 60 of the 1987 Act, the cost of the provision of binaural digital hearing aids.

[2021] NSWPIC 197

22 June 2021