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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flahive and Comcare (Compensation)

Details

AGLC: Flahive and Comcare (Compensation) [2023] AATA 2773
Case: [2023] AATA 2773
Decision Date: 31 August 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Flahive for review of a decision by Comcare, which affirmed previous determinations regarding his claim for permanent impairment. Mr Flahive sought compensation for binaural hearing loss and tinnitus allegedly resulting from exposure to acoustic shrieks at work. The core of the dispute revolved around whether these conditions constituted a permanent impairment and, if so, the degree of that impairment, including whether a previously compensated psychiatric impairment could be combined with the auditory impairments to increase his overall percentage of permanent impairment (WPI).

The court was required to determine whether Mr Flahive's binaural hearing loss and tinnitus resulted in a permanent impairment, and to assess the degree of any such impairment. A key legal issue was whether any further conditions, including a pre-existing psychiatric impairment for which Mr Flahive had already received compensation, could be combined with the auditory impairments to increase his WPI under the relevant assessment guides. The court also considered the adequacy of the medical evidence, particularly the assessment conducted by Dr Mackendrick, and Mr Flahive's concerns regarding the completeness of his history and the methodology used in calculating his hearing loss.

The court's reasoning focused on the expert evidence provided by Dr Mackendrick, an ENT specialist. The court found that Dr Mackendrick had comprehensively reviewed Mr Flahive's medical documentation and obtained a detailed history, despite Mr Flahive's dissatisfaction with the length of the interview and the information provided to the specialist. The court accepted Dr Mackendrick's explanation for preferring certain audiologist reports over others, particularly his reasoning that low-frequency hearing loss is not typically caused by noise damage and that his calculations adhered to current recommended procedures. The court was satisfied that Dr Mackendrick had considered all relevant impairments and concluded that there were no additional impairments that could be combined to increase Mr Flahive's WPI.

The court affirmed the Reviewable Decision made by Comcare.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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). 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). 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). 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. 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. 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. 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).

Decision

Reasons for decision

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 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.) 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 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). 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). 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). 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. 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. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.