Flahive and Comcare (Compensation)

[2023] AATA 2773

Flahive and Comcare (Compensation) [2023] AATA 2773 (31 August 2023)

Division:GENERAL DIVISION

File Number:          2021/9843

Re:John Flahive

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:31 August 2023

Place:Perth

The Reviewable Decision dated 22 October 2021, which affirmed two determinations of Comcare dated 16 September 2021 and 21 September 2021, is affirmed.

..........[Sgd]..............................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

WORKERS’ COMPENSATION – claim for permanent impairment – binaural hearing loss and tinnitus from exposure to acoustic shrieks at work – whether injuries resulted in permanent impairment – degree of permanent impairment – whether there are any further conditions resulting in impairment that could be combined to increase the applicant’s WPI – whether psychiatric impairment that Applicant previously received a permanent impairment compensation payment for could be combined with auditory impairments – Reviewable Decision affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 7(2)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1)(b), 24, 24(1), 24(5), 24(6), 24(7), 24(7A)

CASES

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369

Nolan and Military Rehabilitation and Compensation Commission [2008] AATA 870

SECONDARY MATERIALS

American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition

Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1

Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 3.0

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

31 August 2023

BACKGROUND

1. Mr Flahive was employed at the Australian Taxation Office (ATO) as an APS 4 public servant. From approximately 2000, he was moved to a “Phone Operator Position” in the ATO’s Northbridge call centre (A4/1).

2. While he was working in this position at the ATO, he suffered an acoustic noise related injury from an incident in February 2002 when using a telephone headset, and on subsequent occasions in April, June, and November 2002. Both ears were exposed to acoustic shrieks. Mr Flahive said there were six incidents in total. He said that as a result, he experienced hearing loss, tinnitus, dizzy spells, vertigo, and other conditions associated with his hearing, since 2002 (A4/3).

3. Mr Flahive made three separate claims for injuries associated with his exposure to acoustic shrieks that were accepted by Comcare.

4. For completeness, I also note Mr Flahive made another unrelated claim for an injury to his left knee which was accepted by Comcare with a date of injury dated 19 September 2002 (R3/8).

5. The accepted claims relating to Mr Flahive’s exposure to acoustic shrieks were:

   (a)On 13 March 2002, Comcare accepted liability for “noise effects on inner ear (left)”, with a date of injury of 4 February 2002 (claim number 790261/01). Compensation for medical treatment claims was accepted until 5 March 2002 (RSFIC, para [2.3]; R3/1-3 and 8).

   (b)On 4 February 2003, Comcare accepted liability for “noise effects on inner ear (right)”, with a date of injury of 15 November 2002 (claim number 820074/02). Compensation for medical treatment claims was accepted until 2 January 2003, and for time off work claims resulting from the injury until 18 November 2002 (RSFIC, para [2.4]; R3/4 and 8).

   (c)On 4 February 2003, Comcare also accepted liability for what it again described as “noise effects on inner ear (left)” (claim number 820074/03). This was in response to Mr Flahive’s claim for “ongoing discomfort with hearing & ears, dull headaches & feeling of dizziness which occurred on 4 February, 2002” (R3/5).

6. In a reconsideration dated 23 June 2004, a delegate of Comcare confirmed that Comcare had incorrectly accepted the 4 February 2003 claim as a duplicate of claim number 790261/01. The delegate stated that the description of the injury did not accurately address Mr Flahive’s claim which concerned more than just an injury to his left ear. The delegate determined that “liability is to be amended to accept the condition of acoustic shock syndrome with associated major depressive disorder”. The delegate amended the date of injury to 20 December 2002 (RSFIC, para [2.5]; R3/5 and 8-9).

7. The delegate further determined that Mr Flahive was “entitled to incapacity entitlements and all related medical treatment, including anti-depressant medication” and that the incapacity payments applied from 29 July 2003 (R3/9).

8. These three claims are not before me as part of my review.  Mr Flahive is still receiving some compensation from Comcare. At the hearing he confirmed that Comcare is currently paying compensation for general practitioner expenses (transcript/15).

9. On 29 October 2020, Comcare made a determination to accept Mr Flahive’s claim for permanent impairment which related to Mr Flahive’s major depressive disorder with a date of injury of 20 December 2002. He was paid a total sum of $42,915.85 comprising $19,618.67 for a 10% permanent impairment and $23,297.18 for non-economic loss (R3/11-12).

10. Mr Flahive requested an independent review of this determination, but on 23 December 2020, a delegate of Comcare affirmed the determination (R3/20-27). Mr Flahive did not seek review of the 23 December 2020 determination (transcript/21). This claim is also not before me as part of my review.

    THE PERMANENT IMPAIRMENT CLAIM RELEVANT TO THIS APPLICATION

11. In email correspondence in late 2020 and 2021, Mr Flahive requested medical examinations to determine if a whole of person incapacity existed for his acoustic shock condition (see for example, T35/150).

12. Comcare first arranged for an independent medical examination of Mr Flahive to be undertaken by an ear, nose and throat specialist (ENT), Professor Paul Fagan on 19 April 2021. Professor Fagan did not complete a report after this examination and a follow up appointment was arranged for Mr Flahive to see Professor Fagan again on 26 May 2021. However, correspondence from Comcare indicates that Professor Fagan was no longer able to conduct this follow up appointment “as a result of [Mr Flahive’s] recent interactions with Professor Fagan’s office and eReports [the organisation that arranged the report]” and did not produce a report (T49/273; see generally T49/269-275).

13. Consequently, Comcare referred Mr Flahive to be assessed by another ENT specialist, Dr Alastair Mackendrick, who assessed Mr Flahive on 18 June 2021 (T53).

14. Dr Mackendrick assessed Mr Flahive’s whole person impairment (WPI) for hearing loss as 0.6%, and a WPI for tinnitus of 5% (T53/299). 

15. In a determination dated 16 September 2021, a Comcare delegate determined that Mr Flahive was not entitled to permanent impairment compensation for “noise effects in inner ear” because he had a total degree of impairment of less than 10% WPI (or 5% for hearing loss) (T59/330-331). This meant that Mr Flahive’s level of impairment did not meet the threshold for permanent impairment under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

16. Comcare emailed Mr Flahive on 21 September 2021 to advise him that the determination dated 16 September 2021 was not the correct final version, although the outcome was the same (T61/342). The email attached the correct determination which was dated 21 September 2021 which provided more detailed reasons (T62). This determination found that Mr Flahive was not entitled to permanent impairment compensation for “noise effects of inner ear (left)”, “noise effects of inner ear (right)” and “acoustic shock syndrome” (T62/344).

17. The delegate:

    (a)relied upon Dr Mackendrick’s report and accepted his opinion that it was not possible to apportion degrees of hearing loss to the different incidents or injuries. Therefore, the determination related to Mr Flahive’s WPI for all the conditions (T62/344);

    (b)accepted consultant neurologist Dr Keith Grainger’s opinion that there was not a permanent impairment from a neurological aspect (T62/345);

    (c)referred to the assessment of occupational physician, Dr John Suthers, in a report dated 8 June 2004, where he assessed the Applicant as having a 3.4% binaural hearing loss (which equated to a 1.7% WPI);

    (d)referred to Dr Mackendrick’s assessment that Mr Flahive’s total hearing loss equated to a 0.6% WPI and his assessment that Mr Flahive had a 5% WPI for tinnitus; and

    (e)similarly found that Mr Flahive’s level of impairment did not meet the threshold for permanent impairment under s 24 of the Act.

18. On 21 September 2021 Mr Flahive requested a reconsideration (T63).

19. Comcare reconsidered both the 16 and 21 September 2021 determinations. In a reconsideration of determination decision dated 22 October 2021, a delegate of Comcare affirmed both determinations (T69). This is the Reviewable Decision currently before me.

    THE APPLICATION

20. Mr Flahive lodged an application seeking review of the Reviewable Decision in this Tribunal on 15 December 2021 (T4). He stated the following reasons for seeking review (T4/19):

    Decision denies Natural Justice & a Failing to address all known injuries.

    Also denies & refuses to deal with current symptoms & conditions.

    Denied Medical Investigation for 15 years

    (As original.)

21. I heard this application on 9 and 10 May 2023. Mr Flahive represented himself and made submissions. Mr Burgess represented the Respondent.

    DR MACKENDRICK’S EVIDENCE

22. ENT specialist Dr Mackendrick gave evidence on the second day of the hearing. At the request of Comcare, Dr Mackendrick assessed Mr Flahive on 18 June 2021 and produced a report dated 24 June 2021 (T53).

23. Mr Flahive expressed dissatisfaction with Dr Mackendrick’s assessment of him. He was concerned that Dr Mackendrick was not provided with relevant medical information and that Dr Mackendrick did not take a full history. He disagreed with how Dr Mackendrick calculated his hearing loss (transcript/50 and 52).  

24. Some of these concerns were raised by Mr Flahive after the assessment and completion of Dr Mackendrick’s report of 24 June 2021. Comcare contacted Dr Mackendrick for clarification on 13 July 2021 (T55/307-308) which Dr Mackendrick gave in a report dated 30 July 2021 (T56/310-312).

25. I note that in his reports dated 24 June 2021 and 30 July 2021, Dr Mackendrick’s surname has been mis-spelt in the signature section (as “Mackenrick”). This mistake likely occurred when his report was put onto a Clinical Evaluations Pty Ltd (an organisation that facilitates medico-legal reports) letterhead. 

26. Comcare requested a supplementary report from Dr Mackendrick in a letter dated 20 December 2021 (T70). Comcare asked Dr Mackendrick whether there was any other level of impairment under the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide) or the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA 5 guide), that Mr Flahive may be entitled to from any impairment resulting from the acoustic shock syndrome. In a letter dated 27 January 2022, Dr Mackendrick confirmed his opinion that there was no additional impairment and therefore is no way of calculating additional entitlements (R4). I note this letter was on Dr Mackendrick’s letterhead and contains the correct spelling of his name.   

27. I am satisfied from reviewing Dr Mackendrick’s reports and from hearing his evidence at the hearing that he comprehensively reviewed Mr Flahive’s medical documentation and obtained a detailed history to the extent that it was relevant from those documents. This was supplemented by his interview with Mr Flahive, which at approximately 30 minutes, Mr Flahive thought was not long enough. I have listened to the recording of Mr Flahive’s interview with Dr Mackendrick, and I agree with Dr Mackendrick’s observation that Mr Flahive’s “overall manner was of mild aggression and anger” (T53/296). That was also my impression of Mr Flahive’s demeanour at the hearing of this application. My impression after hearing Dr Mackendrick’s evidence was that he took the Applicant’s medical history as thoroughly as he could in the circumstances.

28. Dr Mackendrick explained that he had not sent Mr Flahive for further auditory testing because the records indicated that Mr Flahive found it distressing. Also, Dr Mackendrick stated that the hearing test that was most relevant to assessing the injury was that of audiologist Shin Shin Lim in 2004 because it “was closer to the incident and gives us a measure of the damage from the noise exposure” and “any subsequent deterioration in [Mr Flahive’s] hearing would not be related to the acoustic incident” (transcript/106). He explained why he preferred Shin Shin Lim’s testing to Dr Robert Bond’s because Dr Bond had included low frequency losses in his tests which would not have been due to noise damage (transcript/85-86). Mr Flahive was also concerned that Dr Mackendrick had disregarded the low frequency noises to calculate his WPI. Dr Mackendrick explained that this was because “low frequency hearing loss is not caused by noise damage” (transcript/88; see also 85-86) and that his discounting of those frequencies was “according to current procedures as recommended by the Australian Otolaryngology Society” (transcript/113).

29. In summary, Dr Mackendrick has sufficient expertise and qualifications to be able to provide an expert opinion. He was able to satisfactorily explain how he reached his assessment of Mr Flahive’s permanent impairment. Accordingly, I accept Dr Mackendrick’s evidence.

30. I also note that Dr Mackendrick’s evidence is the best evidence available. It was open to Mr Flahive to obtain his own expert report, but he did not do so despite having the opportunity to put on evidence. Mr Flahive seemed to be of the view that it was Comcare’s responsibility to obtain evidence for him.

    THE ISSUES

31. The issues that I must determine are, with respect to:

    (a)whether Mr Flahive suffers from injuries that result in a permanent impairment (Issue 1);

    (b)the degree of that permanent impairment having regard to the Guide (Issue 2); and

    (c)whether Mr Flahive has a combined WPI resulting from his injuries of less than 10%, and if not, whether he suffers from binaural hearing loss of less than 5% (Issue 3).

    ISSUE 1

32. Subsection 24(1) of the Act relevantly provides:

    (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.

33. Firstly, does Mr Flahive suffer from an “injury”?

34. In his report dated 24 June 2021, and in his evidence at the hearing, Dr Mackendrick’s opinion was that:

    (a)Mr Flahive “has suffered acoustic trauma to both ears in the various incidents which has resulted in minor damage to the cochlear. This has resulted in tinnitus and mild hearing difficulties and hypersensitivity to noise” (T53/297-298).

    (b)“… the cause of Mr Flahive’s injuries is acoustic trauma” and that “there is certainly some relationship between the acoustic shrieks he received on 4 February 2002 and again on 15 November 2002” (T53/298).

    (c)“Mr Flahive would not suffer from his diagnosed condition if he had not been employed at the Australian Taxation Office” (T53/298).

    (d)Although it was unusual for an acoustic shriek to cause hearing loss, it can happen in about 18% of cases involving the use of headsets. He stated that the shriek “probably causes damage to some of the little hairs, or hair cells, in the cochlear, which results in usually in a high tone hearing loss”. With respect to tinnitus, Dr Mackendrick’s evidence was that “there must be some change” that occurs “anywhere from the cochlear all the way through the nerve to the actual brain” but exactly where that change occurs has not been identified (transcript/83). This evidence suggests that Mr Flahive experienced a “a physiological change or disturbance of the normal physiological state” (Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369) which constitutes an injury (other than a disease).

35. Based on this evidence, I find that Mr Flahive suffered injuries in the form of hearing loss and tinnitus from his exposure to acoustic shrieks and that those injuries arose out of, or in the course of his employment with the ATO (s 5A(1)(b) of the Act).

36. The next question that arises is whether Mr Flahive’s injuries resulted in a permanent impairment.  

37. The Respondent concedes, relying on the assessment of Dr Mackendrick, that they do.

38. I agree, and find, that Mr Flahive’s injuries resulted in a permanent impairment, based on Dr Mackendrick’s opinion that Mr Flahive had not recovered from his hearing loss and tinnitus injuries and that they were permanent (T53/298).

    ISSUE 2

39. I now turn to the question of the degree of Mr Flahive’s permanent impairment.

40. Subsections 24(5) and (6) of the Act provide:

    (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.

41. The “approved Guide” is the Guide defined above at paragraph [26].

42. There was some discussion at the hearing regarding which edition of the Guide was applicable. I observe that:

    (a)Edition 2.1 of the Guide applies to permanent impairment claims, including under s 24 of the Act, received from 1 December 2011 (page 11 of edition 2.1 of the Guide), and Mr Flahive’s claim was made in late 2020 and 2021. However, edition 3.0 of the Guide applies to the assessment of permanent impairment received by Comcare after the commencement date, which was 1 April 2023 (ss 2 and 6(1) of edition 3.0 of the Guide). This indicates that edition 2.1 of the Guide is applicable.

    (b)Also, s 7 of edition 3.0 of the Guide repeals edition 2.1 and replaces it with edition 3.0. However, the notes to s 7 (on page 4) clarify that ss 7(2) of the Acts Interpretation Act 1901 (Cth) applies, and provides amongst other things, that:

    (a) the repeal does not revive anything not in force or existing at the time at which the repeal takes effect; or affect the previous operation of the repealed Guide, or anything duly done under the repealed Guide; or affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Guide; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability; and

    (b) any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the repealed Guide had not been repealed.

    Edition 2.1 was in operation when the initial determination was made on 16 and 21 September 2021 and when the Reviewable Decision was made on 22 October 2021. Therefore, any right, privilege, obligation, or liability acquired, accrued, or incurred was under edition 2.1 of the Guide. I therefore find that the applicable edition is 2.1 of the Guide. 

43. Table 7.1 of the Guide concerns hearing loss and Table 7.2 concerns tinnitus. They provide:

    7.1 Hearing loss

    Hearing defects are assessed in accordance with the current procedures from Australian Hearing. Once the binaural percentage loss of hearing has been calculated, it is then converted to a WPI rating.

    The calculation for converting the percentage loss of hearing to a WPI rating is:

    (Percentage Loss of Hearing)

    2

    7.2 Tinnitus

    Table 7.2 is used to assess impairment arising as a result of tinnitus in the presence of unilateral or bilateral hearing loss.

    Table 7.2: Tinnitus

% WPI	Criteria
0	Continuous tinnitus which has nuisance value but can be forgotten or ignored with background noise or a low level noise generator.
5	Severe continuous tinnitus which causes extreme distress, interferes with concentration and is not assisted by a low level noise generator.

1. Dr Mackendrick calculated that “Mr Flahive has 1.1% loss of hearing due to noise damage”. He further stated that: “Using Comcare guide table 7.1 this total hearing loss can be converted to a whole person impairment (WPI) of 0.55% which is rounded up to 0.6%” (T53/299).

2. He also assessed Mr Flahive’s tinnitus as follows:

   Using table 7.2 from the Comcare guide I believe it is reasonable to add 5% whole person impairment to the hearing loss because of his tinnitus. This symptom does cause distress and interferes with his sleep and is not assisted by low level noise generators.

3. Section 9 of the Guide, titled “Combined values”, explains that a single injury may result in multiple impairments, and if more than one table applies, the scores for each table can be combined using the combined values chart in Part 1, Appendix 1.

4. As I discussed above, in his report dated 24 June 2021, Dr Mackendrick’s opinion was that acoustic shriek incidents caused damage to Mr Flahive’s cochlear, resulting in tinnitus and mild hearing loss. I agree with the Respondent’s submission that this can be regarded as a single injury (damage to the hair cells in the cochlear) which resulted in two impairments (hearing loss and tinnitus) and that the impairments can be combined.

5. This is consistent with the approach taken by the Tribunal in Nolan and Military Rehabilitation and Compensation Commission [2008] AATA 870. Mr Nolan was injured when an explosive charge was detonated near the right side of Mr Nolan’s head which resulted in hearing loss and tinnitus. The Tribunal found at [19]:

   … the explosion created an acoustic trauma which caused the ear drum to forcibly move into the inner ear, resulting in permanent damage to the hair cells. That trauma produced two symptoms, hearing loss and tinnitus. In our view neither the hearing loss nor the tinnitus is an “injury” – the injury is the permanent damage to the hair cells from which the hearing loss and the tinnitus resulted.

6. In his report dated 24 June 2021, Dr Mackendrick used the combined values chart in Part 1, Appendix 1 to reach the opinion that:

   By adding the 0.6% WPI for hearing loss to the 5% WPI for tinnitus Mr Flahive has a whole person impairment in relation to his ears as a result of acoustic trauma while working from the Australian Taxation Office of 6% (WPI) using the rounding up rule.

7. I also noted above that Comcare requested a supplementary report from Dr Mackendrick in a letter dated 20 December 2021 asking whether there was any other impairment that could be added for acoustic shock syndrome. Dr Mackendrick responded in a letter dated 27 January 2022. His opinion was that “acoustic shock syndrome is a new diagnosis and is not encompassed or described in the above guides”. Dr Mackendrick also stated that, “in my opinion there is no way of calculating more entitlements” (R4). I accept Dr Mackendrick’s opinion that there were no further impairments that should have been considered.  

8. Accordingly, I find that Dr Mackendrick was correct to use the combined values chart in Part 1, Appendix 1 and I accept his opinion that Mr Flahive has a WPI of 6%. 

   ISSUE 3

9. The relevant subsections are ss 24(7) and 24(7A) of the Act which provide:

   (7)       Subject to section 25, if:

   (a)     the employee has a permanent impairment other than a hearing loss; and

   (b)     Comcare determines that the degree of permanent impairment is less than 10%;

   an amount of compensation is not payable to the employee under this section.

   (7A)     Subject to section 25, if:

   (a)       the employee has a permanent impairment that is a hearing loss; and

   (b)     Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

   an amount of compensation is not payable to the employee under this section.

10. In summary, for a permanent impairment other than a hearing loss, compensation will not be payable if the degree of permanent impairment is less than 10%. As I found above, the combined effect of Mr Flahive’s injuries is 6% which is under the 10% threshold. Therefore, compensation for a permanent impairment that is a hearing loss will only be payable if Mr Flahive suffers from a binaural hearing loss of 5% or more.

11. I note that Parliament has used the words, “hearing loss” in s 24(7A). The plain English meaning of those words would not include other auditory conditions such as tinnitus which therefore cannot be added into the calculation of hearing loss for the purpose of s 24(7A) of the Act.

12. Dr Mackendrick assessed Mr Flahive as having a 1.1% binaural hearing loss (T53/299). This means that compensation is not payable because his binaural hearing loss is less than 5%.

    Mr Flahive’s request for a permanent incapacity assessment incorporating “all known conditions”

13. Mr Flahive stated repeatedly at the hearing words to the effect of “I’m not a number and I’m not a piece of meat”. He expressed the view that Comcare only assessing his permanent incapacity for auditory injuries amounted to Mr Flahive being “carved up as a piece of meat” (for example, transcript/9, 11, 13, 16, 34). He wanted me to send his application back to Comcare to undertake “a proper permanent impairment assessment of my injuries” whereby his conditions could be combined (transcript/34). He wanted me to set aside the application and send it back to Comcare to “do a proper assessment in accordance with a current guide covering all the known conditions” (transcript/132).

14. At the hearing Mr Flahive expressed concern that Dr Mackendrick did not assess him with respect to his other symptoms of dizziness, headaches, fatigue, and hypersensitivity. Dr Mackendrick confirmed at the hearing that he was not qualified to undertake a neurological assessment and that he was only able to evaluate an impairment for ears, nose and throat including hearing problems (transcript/88). Mr Flahive was reviewed by consultant neurologist, Dr Keith Grainger on 16 June 2006, who wrote a report dated 27 June 2006. Dr Grainger was asked whether there was any neurological disability regarding Mr Flahive’s headaches which started after Mr Flahive’s noise exposure at the call centre. Dr Grainger also noted Mr Flahive had reported symptoms of nausea, sensitivity to light, pressure behind his left ear and “postural dizziness on rising”. Dr Grainger stated in his report that “The hearing loss and tinnitus are an ENT problem” and stated that “I do not feel there is any permanent impairment from the neurological aspect” (T24/94). I am satisfied from Dr Grainger’s evidence, plus Dr Mackendrick’s opinion in his supplementary report dated 27 January 2022 that there was no way of calculating more entitlements, that there are no further impairments that could be added to increase the assessment of permanent incapacity for Mr Flahive.

15. I have also considered whether major depressive disorder can be included as part of Mr Flahive’s permanent incapacity assessment.

16. As I noted above, Comcare described one of Mr Flahive’s claims as “acoustic shock syndrome with associated major depressive disorder” in the reconsideration dated 23 June 2004 (referred to at para [6] above), which is likely to have caused some confusion in these proceedings. However, in my view, rather than being a symptom of Mr Flahive’s auditory injuries, major depressive disorder is a separate injury that can cause multiple impairments and so that is why it was separately assessed under table 5.1 of the Guide. 

17. Also, as I mentioned at paragraphs [9]-[10] above, Comcare accepted Mr Flahive’s claim for permanent impairment in a determination dated 29 October 2020 for major depressive disorder and paid him a lump sum payment. After a review of this determination, on 23 December 2020, a delegate of Comcare affirmed the determination and Mr Flahive did not seek review of it. Consequently, and as I mentioned above, this claim is also not before me as part of my review.

    CONCLUSION

18. To summarise, Mr Flahive suffers from injuries (hearing loss and tinnitus) because of his exposure to acoustic shrieks whilst working at the ATO. As I mentioned above, I understand that some liability continues to be accepted by Comcare because Mr Flahive stated at the hearing that Comcare is paying his general practitioner expenses.

19. I have found that even though Mr Flahive’s injuries have resulted in permanent impairment, the degree of that impairment is less than the threshold for the payment of permanent incapacity compensation set by ss 24(7) and 24(7A) of the Act.

20. Based on the opinion of Dr Mackendrick, and Dr Grainger’s report, I am satisfied that there were no further impairments that could have been considered to increase Mr Flahive’s WPI. As I explained in the previous section, he has already received a compensation payment for permanent incapacity for major depressive disorder and that decision is not before me for review.

21. I am sympathetic to Mr Flahive who has clearly suffered a great deal because of his injuries. My impression is that he has found his dealings with Comcare and the process of appealing Comcare’s decision to the Tribunal to be frustrating and upsetting. The statutory scheme provided for by the Act is somewhat technical and can be difficult for unrepresented applicants to understand and to navigate. I realise that Mr Flahive will be disappointed with my decision, however, it is open for him to submit a new permanent incapacity claim to Comcare in the future if he is able to provide new medical evidence to support it.

    DECISION

22. The Reviewable Decision dated 22 October 2021, which affirmed two determinations of Comcare dated 16 September 2021 and 21 September 2021, is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate

Dated: 31 August 2023

Date of hearing:	9 and 10 May 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers