Geoffrey Surtees v Military Rehabilitation and Compensation Commission
[2007] AATA 25
•16 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 25
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/139
VETERANS' APPEALS DIVISION ) Re GEOFFREY SURTEES Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date16 January 2007
PlaceHobart
Decision The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
CATCHWORDS
Compensation - partial hearing loss - employment as National Serviceman and in the Army Reserve - noise of small arms and machine gun fire and demolition and mine explosions - injury or disease - whether arose out of or in the course of the applicant's employment - expert medical evidence indicating that cause was unrelated to military service - decision under review affirmed
Safety Rehabilitation and Compensation Act 1988, Part X including s124(2)
Commonwealth Employees' Compensation Act 1930, s9(1)
Compensation (Commonwealth Government Employees) Act 1971, s27(1)
Australian Postal Corporation v Burch (1998) 26 AAR 312
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
REASONS FOR DECISION
16 January 2007 The Hon R J Groom (Deputy President) 1. The applicant claims compensation for partial loss of hearing which he attributes to the noise of small arms and machine gun fire, mine explosions and demolition exercises he experienced during his service with the Australian Army between 1957 and 1988.
2. The applicant entered National Service on 8 January 1957. In 1958 he joined the CMF. The CMF later became known as the Army Reserve. The applicant served in the CMF and Army Reserve until reaching retirement age. He was discharged with the rank of Lieutenant Colonel on 4 January 1988.
3. The hearing of this application was held in Hobart on 9 November 2006 with a further brief hearing by telephone on 30 November 2006. The applicant represented himself and Ms A McMahon appeared for the respondent. The applicant and Mr Philip Moore, an Ear Nose and Throat Specialist, gave oral evidence. The “T Documents” lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and several other documentary exhibits were received into evidence.
4. As the applicant contends that his loss of hearing was caused by noise incidents occurring at various times throughout his period of military service between 8 January 1957 and 4 January 1988 the Tribunal must be mindful of the transitional provisions in Part X of the Safety Rehabilitation and Compensation Act 1988 (“the 1988 Act”) as well as the possible application of both the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”) and the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”).
5. S124(2) of the 1988 Act provides as follows:
“(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) ...
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered”.
It is noted that the “commencing day” of the 1988 Act was 1 December 1988. As mentioned above the applicant ceased his employment in the army on 4 January 1988.
6. In a letter to the applicant dated 30 July 2004 (T6) Ms Fleming, a delegate of the Military Rehabilitation and Compensation Commission, stated that “... the appropriate Act under which to consider your claim is the Commonwealth Employees’ Compensation Act 1930. At the hearing Ms McMahon for the respondent submitted that “the relevant Act to apply or for consideration in this particular case is the 1971 Act ...” (Transcript p.53).
7. The question of which particular compensation Act might apply was not in issue between the parties at the hearing. The parties sensibly concentrated their efforts on the central issue in this application namely whether the applicant’s hearing loss was indeed caused by the noises experienced during his employment or by some other unrelated cause. Rather than involve itself in a detailed analysis of the 1930 and 1971 Acts the Tribunal’s intention is to move as quickly as possible to a consideration of that central issue.
8. Should the applicant’s claimed hearing loss be properly categorised as an injury or a disease? Ms McMahon for the respondent contends that it is an injury. Mr Surtees understandably did not express a view on that particular legal question. If it is an injury then the test to determine entitlement to compensation is essentially the same whether the 1930 or 1971 Act applies. Under either Act to be compensable the injury must arise out of or in the course of the applicant’s employment. (see s.9(1) of the 1930 Act and s.27(1) of the 1971 Act)
9. The characterisation of a medical condition as an injury or disease is generally apparent from the facts of a particular case. See, for example, the helpful discussion of the concepts of injury and disease by Northrop J in Australian Postal Corporation v Burch (1998) 26 AAR 312 and also by the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. Gleeson CJ and Kirby J said in their joint judgment (at p.300):
“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of the word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment”.
10. Depending upon the facts of a particular case hearing loss might be either an injury or a disease. This is evident from a reading of the many past hearing loss cases in this Tribunal and also from perusing the “Statement of Principles Concerning Sensorineural Hearing Loss” tended in evidence (Exhibit A4). The long list of “factors” set out in paragraph 5 of that Statement include many types of diseases as well as physical traumas.
11. There is limited medical evidence before the Tribunal to assist it to determine whether in this particular case the correct characterisation of what is claimed to have occurred is an injury or disease. In the paper by Dr Peter Rabinowitz, published in the American Family Physician, the following is stated:
“Shearing forces caused by any sound have an impact on the sterocilia of the hair cells of the basilar membrane of the cochlea; when excessive, these forces can cause cell death”.
In his oral evidence Mr Moore spoke of “physiological change” and “permanent threshold shift” which is a “permanent measure of hearing impairment” (Transcript p.35).
12. After considering the medical evidence as well as the evidence of the noises experienced by the applicant during his military service, it is clear that the applicant is claiming that the noises have caused sudden physiological changes resulting over time in partial hearing loss. The Tribunal therefore finds that the true basis of the claim is a series of discrete physical injuries rather than a disease.
13. The critical question for the Tribunal however is whether it is satisfied that the claimed injuries occurred in the course of the applicant’s employment in the army.
The Issue
14. Did Mr Surtees’ partial hearing loss arise out of or in the course of his employment in the army.
The Facts
15. Mr Surtees said that during his military service he experienced the noise of small arms firing including pistols, single shot and automatic rifles, light medium and heavy machine guns. This occurred on various dates every year throughout his service. He said the weapon firing caused “sudden tremendous noise” (R4). There was cumulative firing at the range “from up to 10 firers”. Range practices were normally conducted over a full eight hour day. This was for 2 or 3 days in each year. He was involved at various times in range practice as firer, coach of other firers, a mound officer and a spectator. When coaching the applicant would generally lie down to the right side of the person being coached. No ear protection was provided at any time. The noise of firing caused ringing in the ears and temporary deafness on numerous occasions. Mr Surtees said the ringing would cease after two hours or so. He was also involved in demolition work and mine explosions but he said “... by far the greatest noise was the small arms practices”. (Transcript p.14)
16. The applicant completed three months in National Service. His employment in the Army Reserve was then on a part-time basis. He enjoyed a long and successful full-time career in the Tasmanian State Public Service from 4 January 1954 until he retired on 28 February 1993. He was a draughtsman for 12 years, a structural engineer for 2 years, a construction engineer for 5 years and an executive engineer for some 20 years. During the years 1968 until 1973 the applicant worked for his Department on the West Coast of Tasmania in road and bridge construction and maintenance. Mr Surtees said he didn’t wear hearing protection but he “wasn’t even close to machines” and “it wasn’t noisy”. (Transcript p.11) The Tribunal finds that the applicant was not subjected to excessive noise levels during his full-time work. His hearing was not harmed by noises experienced in that work.
17. The applicant did not report any hearing problems to his employers during his service in the army. He didn’t complete an incident report concerning hearing problems at any stage. He did not advise his civilian employer of any hearing problems during his long career in the Tasmanian Public Service. He agreed he had told Mr Moore during an interview that he first noticed a hearing problem in about 1990. He said in evidence that his wife kept “hassling” him about his “selective hearing”. In about 1996 a grandchild called him “deafhead” and he “thought that maybe there was something there that I had been neglecting to accept”. (Transcript p.22). He said he was then 58 years of age. He agreed he had told Mr Moore that his “hearing impairment had become progressively worse in the last 15 years”. (Transcript p.23)
Medical Evidence
18. Mr Moore is an Ear Nose and Throat Specialist and has been practising in that speciality for 27 years. He expressed the firm and unequivocal opinion that the applicant’s hearing loss was not attributable to his period of noise exposure whilst employed in the army.
19. In his written report of 7 March 2005 Mr Moore said:
“Hence Mr Surtees’ asymmetrical, high frequency, sensorineural hearing loss is not attributable to military noise induced hearing loss”. (T4 – p.65)
20. In his later report dated 19 May 2006 Mr Moore stated as follows:
“As detailed in my previous report, Mr Surtees gave a history of exposure to occasional military noise from a cadet at school until he left the Army Reserve in 1988. He gave a history of hearing loss that he first noted around 1990 and his accompanying audiograms did not show any abnormal thresholds of hearing on his military audiograms from 1971 until 1982, excepting an impairment in the right ear at 4kHz in 1982. Despite the cessation of any noise exposure, this had progressed further and on my audiogram of February 2005 there was an asymmetrical sensorineural hearing loss to the right hand side.
There was no indication of noise induced hearing loss on his audiograms of 1971 and 1976 nor any in the left ear in 1982. Any hearing loss attributable to noise exposure does not progress once noise exposure has ceased and indeed the major changes are usually in the first ten years of exposure. Furthermore, whilst noise induced hearing loss due to firearms shot from the shoulder may be symmetrical, it is not uncommon for it to be asymmetrical and this asymmetry is contrary to what one would expect from such firearm use and also due to the late progression after cessation of exposure is not considered to be a noise induced hearing loss”. (R2 – p.2)
21. The applicant raised a number of issues concerning Mr Moore’s opinion. In his second report of 19 May 2006 Mr Moore persuasively answered the applicant’s concerns as follows:
“2.3 On 7 March 2005, you reported that shooting a shoulder weapon from the right shoulder predominantly exposes the left ear to the noise of the weapon.
In his letter dated 4 April 2005, Mr Surtees wrote “shooting from the right should would expose the right ear to the initial detonation from the weapon”.
(a) Please explain your opinion regarding the exposure of the left ear to the noise of the weapon when firing from the right shoulder.
When aiming a shoulder-held weapon it is sighted with the same eye. That is to say if shot from the right shoulder (as is most often the case) the weapon is aimed with the right eye and in such stance the head is postured such that the noise (which emanates from the muzzle of the weapon) is more exposed to the left ear and the right ear is more protected in what is known acoustically as the “head shadow”. This fact is considered as “common knowledge” amongst ear specialists but I make two attachments – attachment one from “Scott-Brown’s Otolaryngology” which is a standard text book in Otolaryngology. You will note the underlined section page 2/11/18 confirming the asymmetry to the ear nearest the muzzle. I also attach (attachment two) from “Medical-Legal Evaluation of Hearing Loss” by Robert Dobie (a standard text book of medical-legal otology) where you will note page 166 makes the same point and indeed specifically notes that the left ear receives the brunt of the noise when fired from the right shoulder.
2.4 In his letter dated 5 May 2005, Mr Surtees wrote that “I would hope that the level of hearing loss evidence provided by Philip J Moore, was conducted to accepted Australian standards and is an accurate measure of my hearing loss and that further testing is therefore unnecessary”.
(a) Please comment on the method of testing conducted by you.
I can confirm that the assessment of hearing in my rooms is carried out in accordance with Australian Standard AS1269.4:1998.
2.5 We refer to the applicant’s letter dated 24 March 2006 which responded to our questions in our letter dated 21 December 2005 which requested further and better particulars of his alleged exposure to noise.
(a) Having regard to the level of exposure claimed by Mr Surtees, please comment, on the balance of probabilities, as to the likely noise exposure and what impact, if any, this would have on the Applicant’s hearing.
Noise induced hearing loss is a sensorineural hearing loss which does not progress after noise exposure has ceased. It’s major effect is in the first ten years of exposure. Not withstanding any estimate of the level of Mr Surtees’ occasional exposure to military noise, one should note that the audiograms 1971-1982 did not show any impairment until the idiopathic asymmetrical loss in the right ear (not attributable to noise exposure) was first seen in 1982, progressing further in the audiogram of 2005. Thus one can see that there is no impact by way of noise induced hearing loss on Mr Surtees’ hearing on the noted audiograms.
2.6 With his Statement of Facts dated 21 February 2006, Mr Surtees provided a paper downloaded from the internet by Mr Rabinowitz. Mr Rabinowitz wrote that “although the loss is typically symmetric, noise from such sources as firearms or sirens may produce an asymmetric loss”.
(a) Please comment on the relevant, if any, of this comments by Mr Rabinowitz to Mr Surtees’ condition, having regard to the likely exposure to noise by Mr Surtees.
I have read the attached paper with Mr Surtees downloaded from the internet, authored by Dr Rabinowitz. Not withstanding that Dr Rabihowitz is an occupational health physician (as opposed to an ear specialist) and that his paper is presented under the auspices of the American Academy of Family Physicians (as opposed to the American Academy of Otolaryngology, Head and Neck Surgery) I am in general agreeance with the points that it makes. We should keep in mind however that where Dr Rabinowitz comments “although the loss is typically symmetric, noise from such sources as firearms ... may produce an asymmetric loss” this is indeed the case but is contrary to the manner in which Mr Surtees has interpreted this statement, as I point out in my answer to Question 2.3 above”.
22. A copy of all of the applicant’s service medical records was obtained and is set out in T12 of the T Documents which were tendered in evidence. Two audiograms taken in 1971 and 1976 suggest no significant loss of hearing. The Tribunal accepts Mr Moore’s opinion that both of those audiograms indicate normal hearing. However a further audiogram conducted on 16 November 1982 indicates a hearing impairment in the right ear at 4kHz. The Tribunal accepts that the figure “55” appears below the 4kHz figure of “4000”. Although the figure “55” seems to have been “whited out” and then corrected the Tribunal finds that the figure has not been deliberately tampered with to show a lower reading. The Tribunal’s conclusion is supported by the fact that the figures for both height and weight had also, for some reason, been corrected. The figure 55 seems to be also generally consistent with the 2005 audiogram conducted by Mr Moore which indicates a progressive hearing loss but with a particular deficiency in the right ear.
23. Mr Moore said in evidence that a reading of 55 at 4kHz in the right ear would have little effect on the applicant’s hearing. He said “he would probably not notice much at all ...” (Transcript p.40)
24. As mentioned Mr Moore conducted an audiogram of the applicant’s hearing on 2 February 2005. That audiogram was conducted in accordance with the relevant Australian standards. The Tribunal accepts Mr Moore’s view that the 2005 audiogram showed progressive deterioration of the applicant’s hearing in both ears. He said the most significant loss was at 8kHz in each ear. Mr Moore said “this again is atypical of a noise induced hearing loss which usually has its predominant effect at 4kHz”. (Transcript p.43)
25. The Tribunal has considered the two written reports by Professor Bruce Black dated 11 October 1996 and 22 November 1996. In the Tribunal’s view those reports do not contradict the opinions expressed by Mr Moore. Professor Black confirmed that after the age of approximately fifty many individuals suffer some hearing loss. He also stated that once a person is removed from the source of noise “it is not regarded that further damage occurs”. Those views are consistent with opinions expressed by Mr Moore.
Conclusion
26. The applicant genuinely believes that the hearing loss he is now suffering from was caused by noises he experienced in the army. However such a belief is obviously not sufficient to establish a claim. There must be evidence which satisfies the Tribunal to the standard required.
27. In this case the applicant obviously faces a significant hurdle because a well qualified and very experienced ear specialist has expressed a strong and consistent expert opinion that the applicant’s hearing loss was not noise induced and was not attributable to his service in the army.
28. The applicant did not call any medical expert to contest Mr Moore’s opinion. He expressed some reservations about Mr Moore’s reasoning and indeed set out those reservations in a letter to the delegate of the Military Rehabilitation and Compensation Commission dated 4 April 2005. In the Tribunal’s view those reservations were persuasively refuted in Mr Moore’s second report dated 19 May 2006 and in his oral evidence before the Tribunal.
29. The evidence is that the applicant did not notice any hearing problem until about 1990 and after that, according to the applicant’s own evidence, it became “progressively worse”. The Tribunal accepts Mr Moore’s opinion that any hearing loss attributable to noise exposure does not progress once the noise exposure has ceased. The late onset and the progression of the loss of hearing indicates a cause unrelated to the applicant’s military service.
30. There is evidence of asymmetry in the applicant’s hearing loss but, according to Mr Moore, the asymmetry is on the wrong side if the suggested cause is the firing of weapons by the applicant. The Tribunal, of course, appreciates that there were other sources of noise at the firing range apart from that emanating from the muzzle of the rifle then being fired by the applicant himself. The Tribunal accepts the opinion of Mr Moore that the noise caused by a person firing from the right shoulder is more likely to result in hearing loss, if any, in the left ear of that person.
31. There is no doubt that the applicant is suffering a bilateral sensorineural hearing loss. The evidence as a whole however points to a cause unrelated to his employment in the army. The more likely principal cause is the ordinary ageing process but with some idiopathic factor also affecting hearing in the right ear.
32. After carefully considering all of the evidence before it the Tribunal is not satisfied that the applicant’s hearing loss arose out of or in the course of his employment in the army.
33. The Tribunal has decided that the proper categorisation of the applicant’s claim is injury rather than disease. However, even if the correct categorisation was disease the result would be the same as the appropriate employment connection has not been established to the Tribunal’s satisfaction.
Decision
34. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 9 and 30 November 2006
Date of Decision 16 January 2007
Representative for the Applicant Applicant on his own behalf
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Ms S Johnson, Sparke Helmore
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