Greenwood v Secretary, Department of Education (TAFE)
[2023] NSWPIC 272
•9 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Greenwood v Secretary, Department of Education (TAFE) [2023] NSWPIC 272 |
| APPLICANT: | Danny John Greenwood |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 9 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of hearing aids; injury and noisy employment not in issue; whether hearing aids are reasonably necessary as a result of accepted injury given nature and extent of applicant’s binaural hearing loss; Held – the hearing aids are reasonably necessary as a result of the applicant’s injury; the report of the hearing aids trial demonstrates the actual benefits obtained from their use by the applicant, including the mitigation of his hearing loss and tinnitus; respondent to pay the costs of and incidental to the hearing aids as quoted in the Application. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury in the course of his employment with the respondent by way of binaural hearing loss as a result of exposure to loud industrial noise with a deemed date of injury of 19 February 2021. 2. The hearing aids referred to in the quote of Restore Hearing Pty Ltd trading as Freedom hearing dated 30 September 2020 are reasonably necessary as a result of the applicant's injury. 3. The respondent is to pay the costs of an incidental to the provision of hearing aids in accordance with the relevant WorkCover schedules. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Danny John Greenwood brings proceedings against the respondent, the Secretary of the Department of Education seeking payment for hearing aids, the need for which is said to arise as a result of an accepted injury which he suffered in the course of his employment, with a deemed date of injury of 19 February 2021.
The fact of the applicant's injury is not an issue, nor is the fact that his employment with the respondent was noisy in nature. The only issue for determination is whether the hearing aids sought by the applicant are reasonably necessary as a result of his injury against a background of prior industrial deafness and age-related hearing loss.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether the hearing aids sought by the applicant are reasonably necessary as a result of the injury at issue.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
The parties attended a hearing on 7 June 2023. At the hearing, the applicant was represented by Mr Stanton of counsel instructed by Ms Faura, solicitor. The respondent was represented by Mr Grimes of counsel instructed by Mr McCourt, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments;
(b) Reply and attachments, and
(c) applicants Application to Admit Late Documents (AALD) and attachments dated 8 May 2023.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the claimed hearing aids are reasonably necessary
The applicant carries the onus of proving the hearing aids claimed are reasonably necessary. The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche Diab v NRMA Limited [2014] NSW WCCPD 72. In that matter, the Deputy President cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. Thus, treatment will be considered reasonably necessary if the Commission finds that it is preferable that the worker should have the treatment than it be forborne.
There are other considerations which are also relevant to deciding whether the treatment is reasonably necessary. These include, but are not limited to, the appropriateness of the treatment; the availability of alternative treatment and the potential effectiveness of those alternatives; the cost of the proposed treatment; the potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
It is settled law that the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment sought is absolutely necessary.
In relation to the question of cost, I note no issue was raised to suggest the sum sought to be paid for the hearing aids was unreasonable. Rather, the effectiveness of the treatment and whether the benefit obtained by it is reasonably necessary to treat the effects of the injury in issue is in question.
For the respondent, Mr Grimes appropriately noted there had been an award for the applicant against a previous employer for prior hearing loss of 0.8% following which he worked for nine years as a boiler maker before commencing employment with the respondent.
Mr Grimes noted the competing assessments of Dr Hunter and Dr Fernandes in this matter were of noise related by normal hearing loss of 6.9% and 4.1% respectively, and referred the Commission to various decisions such as Roland – Brae v Roads and Traffic Authority (Workers Compensation Commission 004178/11) in which what Mr Grimes described as a “rule of thumb” had arisen where if a binaural hearing loss of less than 10% had been established then the provision of hearing aids was found to be not reasonably necessary.
Mr Grimes impressed upon the Commission that this would particularly be the case in this matter where each of the independent medical examiners (IMEs) had found age related hearing loss in the applicant, Dr Hunter finding 10.4% and Dr Fernandes 2.9% on top of the binaural hearing loss. Mr Grimes noted that in accordance with established authority such as Nguyen v Cosmopolitan Homes [2008] NSWCA 246, the Commission is required to have actual satisfaction of the existence of an alleged fact before relying on it to make a finding. In this instance, the respondent asserted the Commission could not be satisfied on the evidence that the hearing aids in question were reasonably necessary as a result of the effects of the injury in issue as opposed to the other, interconnected hearing losses from which the applicant suffers.
For the applicant, Mr Stanton submitted that the Commission would not be persuaded by any "rule of thumb" surrounding the reasonable necessity of the hearing aids in circumstances where the applicant had undergone a trial of them and his own lay evidence together with the expert opinion commenting on the trial of the hearing aids from Ms Ritchie, audiometrist, found the applicant derived significant benefit.
In his statement, the applicant referred to his trial of the hearing aids which he now seeks to have provided permanently and commented as follows:
“12. I noticed the following changes whilst trialling the above mentioned hearing aids;
a.I was able to understand what my family was saying. I could hear better and did not feel that I was left out of conversations.
b.My family was happy that I could hear better and could engage in a conversation well. They noticed the improvements and commented how much easier it was to have conversations with me while I had the hearing aids in my ears.
c.I did not feel isolated anymore and was able to participate in conversations with a group of people. Previously I had a lot of trouble trying to follow conversations in groups.
d.I was able to understand speech from the television more clearly and was able to reduce the volume significantly. This was a great comfort to my family.
e.I no longer had to ask people to repeat themselves as much. I was able to enjoy social outings more.
f.I was able to understand speech through the telephone more clearly even when there was background noise such as people talking or from the television.
g.My family did not complain about me being deaf as much whilst I wore my hearing aids.
h.Background noise was also significantly reduced when I wore the hearing aids. I was able to understand speech much more clearly.
i.I never felt more confident whilst wearing the hearing aids
13. I never imagined that hearing aids could have assisted me so much. I was happy with the hearing aids and received substantial benefit. Since returning the hearing aids, I have once again experienced the difficulties I experienced previously.”
In the applicants AALD, Ms Ritchie referred to the results of the hearing aid trial and noted outcomes consistent with the applicant's statement and additionally noted that the applicant's tinnitus had lessened if not resolved whilst he was wearing the hearing aids. Ms Ritchie recorded:
“Mr Greenwood reports a history of hearing difficulties over the previous 10 years. Mr Greenwood reports family and friends frequently comment that his hearing is poor. Mr Greenwood has no history of otalgia, head or ear trauma, family history of deafness or ear disease. There is no vertigo, fullness in the ears, facial numbness or exposure to discharging fire arms or ototoxic drugs. There was no history of recreational noise exposure…
Mr Greenwood ‘s hearing loss and tinnitus is permanent, but can be helped with the use of hearing aids. Mr Greenwood has a hearing loss which prevents him from being able to hear sounds such as ‘bb’, ‘ss’, ‘pp’, ‘ff’, ‘th’ and other consonants which are imperative to the understanding of speech. This problem often causes Mr Greenwood to misunderstand words and makes it extremely difficult to understand conversation. Mr Greenwood experienced the following hearing difficulties:
1. Mr Greenwood indicated he had difficulty understanding speech from the television and through the telephone.
2. Mr Greenwood experiences moderate/severe tinnitus which does interfere with his daily activities and sleep patterns.
3. Mr Greenwood often misses the telephone ring and cannot understand speech through the telephone.
4. Mr Greenwood experiences difficulty understanding speech in back ground noise, particularly in group situations.
5. Mr Greenwood cannot understand speech of people who are softly spoken (such as some women and children).
6. Mr Greenwood has hearing difficulties when conversing in group situations as he feels he cannot understand one voice amongst many.
7. Mr Greenwood indicated he does not enjoy socialising as he feels embarrassed when asking people to repeat themselves.
After setting out the make and model of hearing aids provided, Ms Ritchie set out the results of the trial as follows:
“1. Mr Greenwood indicated he understood speech from the television more clearly and was able to reduce the volume significantly. This was of great comfort to his family.
2. Mr Greenwood did not have to ask people to repeat themselves and therefore enjoyed social outings more.
3. His ability to understand speech through the telephone was significantly improved.
4. Mr Greenwood did not experience any of the symptoms of tinnitus when wearing his hearing aids.
5. Mr Greenwood ‘s family does not complain as much when he is wearing his hearing aids.
6. Mr Greenwood experiences much improved hearing in groups and a significant reduction in background noise when aided.
7. Mr Greenwood advised he is more confident when wearing his hearing aids.”
Mr Stanton submitted, and I accept, that the finding of relief from tinnitus is itself of great significance to an injured worker and provides grounds in support (though is not determinative) of a finding of reasonable necessity for the hearing aids themselves.
I note the respondent relies upon Dr Fernandes who opines the hearing aids are not reasonably necessary. Dr Fernandes’ findings were that the speech reception frequencies were not significantly affected in the audiometry results which he found. However, the lived experience of the applicant and the findings of the audiometrist after the clinical trial suggest to the contrary. That is, the applicant derived significant benefit from the provision of the hearing aids in the clinical trial and I therefore prefer the views of Dr Hunter, audiometrist Ms Richie and also the applicant's statement evidence, finding as I do that he is a witness of truth.
I accept the submissions of Mr Stanton that the benefits to the applicant from the provision of hearing aids are substantial and very real. In this matter, the trial results provide actual evidence of the very real clinical benefits likely to be afforded to the applicant by the provision of the hearing aids.
Although Mr Grimes raised the question of whether the aids are necessary as a result of the accepted injury or because of either age related hearing loss and/ or the prior industrial deafness, I note the respondent’s own IME Dr Fernandes accepts the respondent was the applicant’s last noisy employer. Dr Fernandes does not accept the reasonable necessity of the proposed hearing aids, however, he does so on a somewhat unusual basis. He states the speech reception frequencies are more significantly affected in his findings and states recognition of words depends more on vowels than consonants, and as such a level of loss should not affect a worker’s activities of daily living, which might also be assisted by other aids such as clarity of speech, explicitness, lucidity, comprehensibility and other elements of speech.
Those findings stand in contrast to the benefits obtained by the applicant from the hearing aid trial. Moreover, it is not necessary for a proposed modality of treatment to be the only effective regime in order to be reasonably necessary.
I do not find favour with Dr Fernandes’ suggestion that it is more appropriate for the applicant to somehow attempt to encourage those with whom he engages in conversation – including, presumably, those whom he may never have previously met – to speak more clearly, with explicitly and with greater lucidity. One can comfortably imagine such a suggestion from a stranger being met with a more than explicit response.
I am comfortably satisfied on the balance of probabilities that the hearing aids are a treatment modality which should be provided to the applicant rather than be forborne. They are, having applied the criteria set out in Diab, reasonably necessary as a consequence of the applicant’s injury. That is, I am satisfied on the balance of probabilities that the applicant’s employment with the respondent has brought about the need for them. The trial demonstrated very real and demonstrable benefits to the applicant from their use.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.
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