Fletcher and Comcare

[2003] AATA 624

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 624

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/640

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ROBERT FLETCHER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date1 July 2003

PlaceMelbourne

Decision The decision under review is affirmed.

...............................................

Senior Member

Compensation; Applicant a member of the Citizen’s Military Force between 1955 – 1957; exposed to “blast noise”; Meniere’s Disease diagnosed in 1989; whether a material contribution by acoustic trauma to Meniere’s Disease; decision affirmed.

REASONS FOR DECISION

1 July 2003      Mr John Handley, Senior Member

1.      The applicant applies to review a decision made by the respondent on 23 April 2002.

2.      The reviewable decision determined that the respondent was liable to pay compensation for noise induced hearing loss at 11.1% pursuant to the Compensation (Commonwealth Government Employees’) Act 1971.  (It became obvious during the hearing, and for reasons which will be discussed later, that the applicant should have been awarded compensation pursuant to the Commonwealth Employees’ Compensation Act (1930) (“the 1930 Act”)).

3.      The hearing was convened in Melbourne on 30 May.  Mr Fletcher appeared without representation.  Mr Lenczner of Counsel appeared on behalf of the respondent.  Evidence was heard from Dr Ryan and Mr Webb who are both ear, nose and throat surgeons.  Dr Ryan has been treating Mr Fletcher and Mr Webb had examined the applicant on two occasions on a medico legal basis at the request of the respondent.  A number of reports were also received into evidence and they will be referred to later in these reasons.

4.      The circumstances giving rise to this application may be briefly summarised as follows.

5.      Mr Fletcher is presently 67 years of age having been born on 24 July 1935.  Between 16 August 1955 and 19 August 1957 he was a member of the Citizen Military Forces (“CMF”).  During that membership he was exposed to the noise from guns and mortars.  The noise was described by Mr Fletcher in his claim for compensation as “excessive”.

6.      On 29 March 2001 the respondent arranged for Mr Fletcher to be examined by Australian Hearing Services.  The consultant ear, nose and throat specialist was Mr Webb and an assessment of binaural hearing loss was made at 28.3%.  Because of the presence of Meniere’s Disease in the applicant’s right ear, the “compensible” loss was found by Mr Webb to be 13.5%.  He made an allowance for presbyacusis at 2.4% and assessed the compensible loss at 11.1%.  This is the assessment determined by the respondent in its reviewable decision.

7.      The respondent assessed the monetary entitlement to compensation at the rates applicable in 1958, being twelve months after the date of discharge from the CMF.  It was reported, at that time that the hearing loss could be found to be “permanent” and the sum of $365.19 was allowed.

8.      A number of preliminary issues were discussed prior to evidence being heard.

9. Initially Mr Fletcher was concerned that that sum of compensation had not been paid. He was also concerned that a payment pursuant to s27 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) had not been paid. That amount had been assessed at $1,212.19.

10. Later it was learnt that Mr Fletcher had not completed an Election form pursuant to s45 of the 1988 Act. Apparently the practice of the respondent was not to pay compensation until that form had been completed. The letter which accompanied the Election form (which was posted to Mr Fletcher on 29 April 2002 – T24 page 59) did not refer to the payment pursuant to s27. Mr Lenczner acknowledged that omission but confirmed that if it was decided that the applicant did have an entitlement to compensation pursuant to s30 of 1930 Act he, in fact would have an entitlement pursuant to s27 of 1988 Act. That entitlement is preserved because the claim for compensation was made on 30 October 2000 however the Safety Rehabilitation and Compensation and other Legislation Amendment Act 2001 in its amendment of s27 did not exclude entitlement under s27 for claims for compensation which were made before 7 December 2000.

11.     Mr Fletcher acknowledged that the assessment made by Mr Webb in March 2001 was consistent with the assessment of hearing loss made by his own specialist Dr Ryan and he took no issue with the finding of an entitlement at 11.1%, or the methodology adopted by Mr Webb.

12.     The remaining issues of concern to Mr Fletcher were the assessment of compensation at 1958.  It was subsequently explained to Mr Fletcher by Mr Lenczner, during a short adjournment, that the relevant provisions of s124 of the 1988 Act dictated that compensation be assessed – in the circumstances of this case – at 1958 and as a matter of law.  The advice to Mr Fletcher was sound (refer s124(7) of the 1988 Act).

13.     During the hearing an issue of whether there should have been any reduction in the finding of hearing loss by reason of presbycusis was resolved when Dr Ryan conceded that the allowance made by Mr Webb was appropriate.

14.     The remaining issue therefore to be determined by the review on 30 May was whether there was an association between exposure to noise and Meniere’s Disease.  If such an association existed, Mr Fletcher would have an entitlement to a greater sum of compensation because the compensible hearing loss would be greater than 11.1%.

15.     Mr Fletcher pursued this component of his claim on the basis of a report prepared by Mr Ryan of 17 June 2002 which was received into evidence as Exhibit 1.  The respondent did not have a copy of this report prior to the commencement of the hearing.

16.     Relevantly the following paragraph in the report was understood by Mr Fletcher as giving support for an association between exposure to noise and Meniere’s Disease -

The final matter that I would like to raise is the question of the exposure to the heavy artillery in the production of his Meniere’s Disease.  Meniere’s Disease is characterized by the pathologic correlate of endolyphatic hydrops or an increased of pressure of fluid in the endolyphatic system.  It is well known that this can be primary or idiopathic and occur with no particular pre disposing factor and in this case it is referred to as Meniere’s Disease or that it can occur as a secondary phenomenon and it is well known that ear trauma can cause secondary acquired endolymphatic hydrops which presents with all of the symptomatology of Meniere’s Disease.  He was firing 100lb shells during his time with the artillery, he was not given any suitable ear protection, he was merely told to open his mouth to protect his ears and it would be extremely difficult to disprove that this blast injury did not produce this affect on his ear particularly as it was his affected ear that was more exposed to the noise in his gunnery station and I would there submit that it is also possible that exposure to loud noise and blasts damaged his inner ear and resulted in a secondary acquired hydrops which lead to his problems with Meniere’s Disease and I would equally submit that this is simply impossible to prove either way and that he should be given the benefit of the doubt.

17.     In evidence Dr Ryan said there was “no doubt” that routine exposure to noise will not cause Meniere’s Disease.  However on the history given to him from Mr Fletcher of being exposed to the discharge of “25 pounders” and “100 pounders” Mr Fletcher was exposed to “blast” noise which, in his experience, can have the effect of severe inner ear damage.  In the case of Mr Fletcher, he was satisfied that a possibility existed of endolymphatic hydrops increasing in pressure by fluid in the ears secondary to the “blast injury”.

18.     Dr Ryan said that he had taken the history from Mr Fletcher of being exposed on at least one occasion to a “blast” which threw him off his feet with subsequent ringing of his right ear and blockage, together with instability and loss of balance.  Dr Ryan said “this could have potentially led to Meniere’s Disease”.

19.     In cross-examination Dr Ryan acknowledged that Meniere’s Disease is generally regarded as idiopathic and its cause is not known.  However in his experience Meniere’s Disease can occur secondary to a blast type noise or from head injury or result from surgery.  He said that it would necessarily follow that the presence of Meniere’s or Meniere’s-like symptoms would occur within a short time after the traumatic event and said that the interval could be between months and years.  He said the occurrence of Meniere’s Disease was unpredictable.

20.     When he was asked to explain his qualifications to give these opinions Dr Ryan said he had previously managed the “giddy clinic” at the Eye and Ear Hospital for the last 30 years.  He said that he had “done more on Meniere’s Disease than anyone else in Victoria” and whilst he agreed with the reported opinions of Mr Webb with respect to the relationship between noise exposure and Meniere’s Disease, he agreed that there was a divergence in opinion between them as to the relationship between loud blast type noise from artillery fire and the subsequent development of Meniere’s Disease.  Dr Ryan said that it was “impossible to say” that there was an association between loud acoustic trauma and Meniere’s Disease and at its highest level he said that there “may” be such an association.

21.     He dismissed the suggestion that the first diagnosis of Meniere’s Disease in 1989, being more than 30 years after the exposure to acoustic trauma, was unlikely to establish a connection between the trauma and the Meniere’s Disease.

22.     When he was asked to provide any journal or text book references in support of his opinion of an association between acoustic trauma and Meniere’s Disease Dr Ryan relied on an American surgeon George Shamaugh who he said was the first to describe the “entity of secondary acquired hydrops”.  He said that this phenomena was first reported by Dr Shamaugh in the 1960’s and that there had been “ongoing literature” in North America.  He said that literature supported a connection between noise and secondary Meniere’s Disease.  Additionally he said that another surgeon in Denver – Dr Aaronberg – had successfully performed surgery to correct a leaking endolymphatic fistula which he said was a precursor to Meniere’s Disease.

23.     Mr Webb gave evidence on behalf of the respondent.  He was aware that Dr Ryan and previously reported upon an association between acoustic trauma and Meniere’s Disease.  In a supplement to a second report of 26 March 2003 he recorded the following upon the association between Meniere’s Disease and acoustic trauma;

Mr Fletcher was in the National Service as a full soldier for 3 months from 16/08/1955 to 21/03/1955.  He then spent 21 months as a part-time soldier in the Citizen Military Forces from 23/11/1955 to 19/08/1957.  His Meniere’s syndrome began 32 years later in 1989.  The aetiology of Meniere’s syndrome is uncertain and although some people who have it were exposed to noise and/or blast injuries, it is not possible to state that this in fact was the cause, and that it would not have arisen in the absence of such exposure.  The vast majority of people exposed to noise and/or blasts do not have Meniere’s syndrome, although a perilymph fistula may occur.  But this would cause symptoms immediately at the time of the injury and not many years later.  It is my opinion that Mr Fletcher would have developed Meniere’s syndrome even if he had no military service.  Therefore I think this in unrelated to this service.

24.     After Dr Ryan had concluded his evidence the hearing was stood down for a short time to permit Mr Lenczner to acquaint Mr Webb with part of the evidence of Dr Ryan, namely his reliance upon the persons Shamaugh and Arronberg.  Mr Webb was asked to undertake an internet search to obtain the papers or journal articles which Dr Ryan had suggested gave support to his opinions.

25.     Mr Webb said, having undertaken an internet search through “Medline”, that Dr Shamaugh had not ever written or published any reports associating acoustic trauma with Meniere’s Disease.  He said that Dr Aaronberg had delivered a paper at a conference but it had not ever been published.

26.     He said that he was aware of journal articles where “delayed Meniere’s Disease” had been considered in cases where persons had previously suffered acoustic trauma but no evidence had ever been found of an association between acoustic trauma and the onset of Meniere’s Disease.

27.     With respect to the opinion of Dr Ryan that a perilymph fistula secondary to acoustic trauma could account for the subsequent presence of Meniere’s Disease, Mr Webb said that the leading text on Meniere’s Disease provided no support for this proposition (“The Otolaryngologic Clinics of North America – Pathogenesis of Meniere’s Disease; Treatment Considerations” Volume 35 June 2002 Michael M Paparella editor).

28.     On balance Mr Webb was satisfied that there was no association between acoustic trauma and Meniere’s Disease.

29.     In cross-examination from Mr Fletcher, Mr Webb was taken to his report of 26 March and particularly the last sentence of the paragraph reproduced above which reads “Therefore I think that this is unrelated to his service”.Mr Webb acknowledged that the use of the words “I think” were inappropriate.  He said that he “was certain” that there was no relationship between service and Meniere’s Disease.

30.     In answer to some questions from me, Mr Webb said that his opinions were based upon his clinical experience, his reference to journal and text articles and to discussions he had held with eight other colleagues concerning the proposition advanced by Dr Ryan.  He said there was no support by any of those eight persons for an association between acoustic trauma and Meniere’s Disease.

31.     With respect to the standard of proof between science and the law being different, Mr Webb relied on a publication entitled “Designation of Levels of Evidence” published by the National Health and Medical Research Council 2000 which ranked six different levels of evidence (i,ii,iii/1,iii/2,iii/3 and iv).  These rankings he said applied to the information obtained from particular studies and the nature of studies.  He said the highest ranking was “(i)” which was “evidence obtained from a systematic review of all relevant randomised controlled trials”, whereas the extreme level of “(iv)” was “evidence obtained from case series, either post-test or pretest/post-test”.

32.     He said that the proposition advanced by Dr Ryan in this case would attract level iv because that level was reserved for a hypothesis or a proposition which had no evidence in support.  When it was explained to him that the Tribunal needed to be satisfied as to whether there was a material contribution by service to Meniere’s Disease, and whether that contribution was greater than de minimus, he said that the support for the association between acoustic trauma and Meniere’s Disease was less than de minimus because there was no support for the proposition at all.

Conclusion and Reasons for Decision

33.     I am unable to find that the exposure by Mr Fletcher to acoustic trauma between 1955 and 1957 at the level described by Dr Ryan contributed in a material degree to the diagnosis of Meniere’s Disease in 1989.

34.     Mr Webb excluded that association absolutely.  Dr Ryan described the association as a possibility.

35.     On the evidence heard, the highest level at which there could be an association between acoustic trauma and Meniere’s Disease was the evidence of Dr Ryan who acknowledged that it was no greater than a possibility. I cannot be satisfied, on balance, that the evidence of Dr Ryan should be preferred to the evidence of Mr Webb.

36.     I am satisfied having heard Mr Webb that there is no journal or text book support for the propositions advanced by Dr Ryan and I am satisfied that the support by Drs Shamaugh and Aaronberg – as was believed by Dr Ryan – in support of the connection between acoustic trauma and Meniere’s Disease in fact does not exist.  I am also reassured by the evidence of Mr Webb who, together with 8 other colleagues, were of the opinion that there was no association between acoustic trauma and Meniere’s Disease.

37. If this were an application under the Veterans’ Entitlements Act 1986, the opinion of Dr Ryan may amount to a “reasonable hypothesis”, however I note, although not relevant to this review, that the Repatriation Medical Authority has determined that a reasonable hypothesis exists connecting sensorineural hearing loss and operational service if Meniere’s Disease existed at the time of the clinical onset of the hearing loss (Statement of Principles No 29/2001, factor 5(a)).

38. I am satisfied that the decision under review in these proceedings should in the above circumstances be affirmed. It therefore follows that Mr Fletcher is entitled to compensation pursuant to s24 of 1988 Act (to be assessed at 1958 under the 1930 Act) in the sum of $365.19. Additionally he is entitled to compensation pursuant to s27 of 1988 Act in the sum of $1,212.19. Mr Fletcher is also entitled to his costs associated with these proceedings.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member

Signed:         Elsa Genovese
  Personal Assistant

Date/s of Hearing  30 May 2003
Date of Decision  1 July 2003
Solicitor for the Applicant          Self
Counsel for the Respondent     Mr J Lenczner
Solicitor for the Respondent     Mr C Lolis

C/- Phillips Fox Lawyers