Grey v Endeavour Energy
[2024] NSWPIC 612
•31 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grey v Endeavour Energy [2024] NSWPIC 612 |
| APPLICANT: | John Grey |
| RESPONDENT: | Endeavour Energy |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 31 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Industrial deafness; claim for hearing aids and table microphone; multiple causes and material contribution; Murphy v Allity Managements Services Pty Ltd considered; Held – award in favour of the applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. Respondent to pay, pursuant to s 60 of the Workers Compensation Act 1987, for the cost of the supply and fitting of hearing aids and a table microphone, as recommended by Dr Fagan in his report dated 22 August 2023. Hearing aid fees to be in accordance with the Workers Compensation (Hearing Aid Fees) Order 2024. |
STATEMENT OF REASONS
BACKGROUND
Mr John Grey (the applicant) was employed by Endeavour Energy (the respondent) from 1971 to 5 January 2007. Mr Grey worked as an electrician for the respondent for the entire period of his employment. That employment was noisy. The applicant has not been employed since his employment with the respondent ceased.
The applicant sustained hearing loss as a result of his employment with the respondent, although, as noted below, a correction for presbycusis applied.
The applicant claims for the cost of the supply and fitting of hearing aids and the provision of a table microphone.
By way of dispute notices, the respondent relevantly disputed the claimed expenses on the basis that such expenses were the result of presbycusis, not from injury. A dispute as to notice of claim and compensation was not pressed at the hearing of this matter.
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.
At the conciliation/arbitration hearing of this matter on 30 October 2024, the applicant was represented by Mr R Stanton, of counsel, instructed by Ms Faura, solicitor, and the respondent by Mr J Gaitanis, of counsel, instructed by Ms Chaplin, 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 and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence.
Applicant’s statements
The applicant provided statements dated 16 March 2024 and 9 May 2024.
It is not necessary to summarise in detail these statements, given the issue in dispute. In the former statement the applicant described his noisy employment with the respondent, his difficulties with hearing, and the benefit he felt from a trial of hearing aids. The latter statement dealt with notice issues, which was not pressed at the hearing of this matter.
Dr Fagan
Dr Fagan, ear nose and throat specialist, provided a report to the applicant’s solicitors dated 22 August 2023.
Dr Fagan noted the applicant’s auditory symptoms and the affect of his symptoms on his lifestyle and homelife. Dr Fagan noted the applicant’s occupational noise exposure and employment history.
Dr Fagan was of the opinion that:
“The worker's employment history and audiogram configuration support the diagnosis of industrial hearing loss. I note 44 years of significant noise exposure. I am of the opinion the frequencies from 2000Hz to 4000Hz have been affected as a result of noise exposure. The lower frequencies have not been affected by noise.”
In respect of tinnitus, Dr Fagan stated:
“Mr Grey reports intermittent tinnitus in both ears. Sleep induction and concentration on certain daily tasks are often affected. He first noticed it 5 years ago.
Tinnitus is assessable under Chapter 9.11 of the WorkCover Guides. In arriving at my assessment of additional B.H.L. due to severe tinnitus, I have utilised my clinical judgement and believe a loading of 3% binaural hearing loss for severe tinnitus should be made.”
Dr Fagan assessed percentage hearing loss due to industrial deafness with calculations of hearing impairment based on Chapter 9 of the WorkCover Guides and the 1988 N.A.L. Tables. He assessed occupational hearing impairment in terms of percentage binaural hearing impairment with respect to 2000 Hz as 0.5, 3000 Hz as 4.8, and 4000 Hz as 6.0, for a total of 11.3. He subtracted a presbycusis correction of 9.0, for a total compensable binaural hearing loss of 2.3%.
Dr Fagan was of the opinion that “the nature and severity of his hearing loss and tinnitus warrant using comfortable receiver-in- the-ear digital hearing aids…Hearing aids will also assist with his tinnitus by masking its effects.”
Dr Fagan was also of the opinion that the applicant’s “noise-induced hearing loss and tinnitus are material contributors to his need for hearing aids.”
Dr Fagan recommended the provision of a table microphone for acoustic support in group settings such as family gatherings.
Dr Howison
Dr Howison, ear nose and throat surgeon, provided a report to the respondent’s solicitors dated 30 October 2023.
Dr Howison noted the applicant’s employment history.
Dr Howison was of the opinion that:
“After consideration of the cumulative noise emission levels to which Mr Grey's has been exposed and the shape of the audiogram, I would consider that the frequencies 2000, 3000 and 4000 Hz in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.”
Under the headings “Assessment of WPI (Whole Person Impairment)” and “Assessment of Occupational Hearing Impairment”, Dr Howison assessed in percentage terms binaural occupational hearing impairment as 9.0%, subtracted presbycusis correction of 9.0%, added a loading for severe tinnitus of 1.0%, for a total binaural occupational hearing impairment of 1.0%. He assessed WPI as 0.0%. He also assessed a non-occupational hearing impairment of 1%.
Dr Howison was of the opinion that the applicant has a “high tone sensori-neural noise induced hearing loss”.
Dr Howison also noted the differences in audiograms. He stated that “I do however agree with Dr Fagan, as confirmed on Freedom Hearing's audiogram, that the frequencies 2000, 3000 and 4000 Hz have been damaged by unacceptable noise levels.”
Dr Howison was of the opinion that
“The only means of improving Mr Grey's hearing loss is with the use of bilateral digital hearing aids. Mr Grey does not require hearing [aids] as a result of occupational noise exposure however he does require hearing aid as result of presbycusis.”
Other documents
A hearing assessment report dated 15 February 2023 was attached to the application. The contents of that report are noted. It is not necessary to summarise or further deal with that report, as the issue of presbycusis was raised by Dr Howison, and noted by Dr Fagan.
Reasons
There was no dispute as to:
(a) notice of injury or claim for compensation;
(b) deemed date of injury of 5 January 2007;
(c) the last date of employment with the respondent was 5 January 2007;
(d) the applicant worked as an electrician for the respondent from 1971 to 2007;
(e) the applicant was exposed to noise at work in his employment with the respondent;
(f) the respondent was the last noisy employer, and
(g) hearing aids and table microphone are appropriate.
There was also no dispute on the medical evidence that the tinnitus suffered by the applicant was the result of his occupational noise exposure in the course of employment with the respondent. Both Dr Fagan and Dr Howison were of the view that the applicant suffered severe tinnitus, and both included an additional assessment or “loading” for tinnitus in calculating total percentage hearing loss resulting from employment.
The respondent identified the issue as being that the requirement for hearing aids and a table microphone was not due to noise induced hearing loss, but rather to presbycusis or age-related hearing loss, as set out in the respondent’s dispute notices.
Both parties agreed that the decision in Murphy v Allity Management Services Pty Ltd[1] (Murphy) was relevant to my consideration of this matter. In that decision it was stated:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy's claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary "as a result of' the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[1] [2015] NSWWCCPD 49.
The parties in submissions agreed there were causes for the need for the claimed expenses, that is age and occupational noise exposure. The respondent described these as “competing causes”, while the applicant described them as “multiple causes”. I prefer the latter term, as it is in accordance with the terminology used in Murphy, and does not imply an assessment of the contribution of one cause against another, which is not in accordance with the reasoning in Murphy.
The parties differed on whether the applicant’s hearing loss resulting from his employment materially contributed to the need for the proposed hearing aids and table microphone.
The respondent argued that at the time of medical assessment by Dr Fagan in 2023, the applicant was 76 years of age and had not been employed by the respondent for a period of 16 years.
The respondent submitted that even on the assessment of Dr Fagan, the age related hearing loss was 9%, with a total hearing loss of 11.3%. Occupational hearing loss, it was submitted, could not be said to have made a material contribution when a large part of total hearing loss was age related. The respondent submitted that it was incumbent on Dr Fagan to explain his view, and he had not.
I was not taken in submissions to the content of the meaning of “material contribution”, probably because this will depend upon the particular evidence, including medical evidence, of each particular case. Indeed, this matter was conducted on the basis of whether or not the evidence supported such a finding.
However, it is important to consider that the work injury, in this case hearing loss as a result of exposure to noise in the course of employment, need not even be a substantial cause of the need for the treatment claimed, being hearing aids and a table microphone, for the cost to be recoverable pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
It should also be noted that an assessment of permanent impairment in respect of lump sum compensation, according to the calculations and subtractions noted above, is not the same as an assessment of whether the work injury materially contributed to the need for treatment. For the assessment of permanent impairment, one non-work cause may reduce the permanent impairment, and therefore affect lump sum compensation, whereas for a consideration of a material contribution to the need for treatment, the existence of one or more other non-work causes, or their relative sizes or proportions, is not necessarily determinative of the issue.
In my view, the assessment of a hearing loss of 2.3% as a result of work injury that was made by Dr Fagan is sufficient to constitute a material contribution to the need for hearing aids. Dr Fagan noted the symptoms and effects of the applicant’s hearing loss. He had regard to presbycusis in his assessment of permanent impairment. His calculations indicated the size of both presbycusis and of noise induced hearing loss. He was of the view that the noise induced hearing loss was a material contributor to the need for hearing aids. Given that Dr Fagan also recommended a table microphone in the terms noted above, in my view his opinion as to material contribution extended also to a table microphone.
I do not accept the respondent’s submissions that Dr Fagan did not explain his view as to material contribution when it was incumbent upon him to do so. Taking his report as a whole, and particularly with respect to the matters discussed in the preceding paragraph, Dr Fagan expressed his conclusion having regard to those matters. He did consider the applicant’s age, through the presbycusis correction. The elapse of time since cessation of employment was not relevant in my view, other than of course the passage of time in respect of the applicant’s age. It was not necessary for Dr Fagan to explain his view as to material contribution with reference to the larger sized presbycusis, as this is matter of multiple causes, not competing causes. This in my view is not an opinion which requires further or substantial elaboration. I accept the opinion of Dr Fagan.
Dr Howison did not deal with the applicant’s symptoms and the effects of those symptoms. He did not deal with the correct legal test, as described in Murphy, as to material contribution. I do not accept the respondent’s submissions in this regard. Dr Howison did assess an occupational hearing loss of 10%, reduced for presbycusis of 9%, for a remainder of 1% occupational hearing loss, or 0% whole person impairment. On Dr Howison’s calculations there was an occupational hearing loss, and therefore there was an absence of consideration of whether there was a material contribution of that hearing loss to the need for treatment. I do not prefer the opinion of Dr Howison.
Additionally, and separately, Dr Fagan also recommended hearing aids for the treatment of the applicant’s tinnitus. As noted above, there was an acceptance by Dr Fagan and
Dr Howison that the applicant’s tinnitus resulted from the same exposure to noise at work. There was no dispute that the applicant’s tinnitus was the result of noisy employment with the respondent. Dr Howison did not comment in relation to the recommendation for hearing aids for treatment of tinnitus. I accept the opinion of Dr Fagan. As noted above, I have accepted that the opinion of Dr Fagan extends to a table microphone.If I am found to be wrong in respect of the question of the material contribution of hearing loss to the need for the claimed treatment, then in my view the applicant’s tinnitus materially contributed to the need for the claimed treatment.
A common sense approach to causation[2] applies in this case. The applicant has noise induced hearing loss and tinnitus. Treatment in the form of hearing aids and a table microphone has been recommended by Dr Fagan. Dr Fagan is of the view that the applicant’s noise induced hearing loss and tinnitus have made material contributions to the need for the recommended treatment. I have accepted each of these matters. In my view, a common sense causal relationship has been established.
[2] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
I find that the applicant’s hearing loss and tinnitus resulting from his employment with the respondent materially contributed to the need for hearing aids and a table microphone.
There was no dispute as to the requirement for hearing aids. The requirement for a table microphone was not disputed.
0
5
0