Hawthorn v Tomago Aluminium Co Pty Ltd
[2022] NSWPIC 56
•9 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hawthorn v Tomago Aluminium Co Pty Ltd [2022] NSWPIC 56 |
| APPLICANT: | Gary Allan Hawthorn |
| RESPONDENT: | Tomago Aluminium Co Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 9 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the cost of bilateral hearing aids as being reasonably necessary as a result of undisputed noise induced hearing loss; the respondent asserts, based on the opinion of Dr Fernandes, that the average bilateral hearing loss is to be 40 dB over the higher frequencies of 2000, 3000 and 4000 Hz before a person becomes hearing handicapped such as to show the reasonable necessity for hearing aids as a result of injury; differing results of audiograms relied upon by the applicant and respondent; detailed examination of the medical evidence; Murphy v Allity and Diab v NRMA Insurance Ltd referred to; Held - award for the applicant and the respondent ordered to pay for the provision of bilateral hearing aids pursuant to the Workers Compensation Act 1987 and the Workers Compensation (Hearing Aid Fees) Order 2021. |
| DETERMINATIONS MADE: | 1. The supply and fitting of hearing aids to the applicant is reasonably necessary as a result of injury, namely, the bilateral loss of hearing due to noise exposure. 2. The respondent is to pay for the provision of bilateral hearing aids for the applicant pursuant to s 60 of the Workers Compensation Act 1987 and the Workers Compensation (Hearing Aid Fees) Order 2021. |
STATEMENT OF REASONS
BACKGROUND
Gary Allan Hawthorn (the applicant/Mr Hawthorn) seeks compensation for the cost of supply and fitting of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of industrial deafness he suffered arising out of or in the course of his employment with Tomago Aluminium Co Pty Ltd (the respondent) over the period from 18 April 1995 to 29 August 2017. During that time Mr Hawthorn was exposed to noise from ingot chain(s), aluminium machinery, diesel forklifts, overhead cranes, conveyor belts, robots, thumping machinery, and general manufacturing noise. He worked four to five days a week, five to six hours a day. Hearing protection was provided.
The respondent does not dispute that the applicant was engaged in noisy employment, that is, employment to the nature of which his loss, or further loss, of hearing was due.
The applicant was assessed by Dr Paul Fagan, ear nose and throat surgeon, on 8 December 2017 who produced reports dated 28 February 2018 and 5 January 2021. Dr Fagan assessed Mr Hawthorn as having sustained a total compensable percentage binaural hearing loss (BHL) of 10.1, which converts to 5% whole person impairment (WPI). The doctor found that the nature of the applicant’s hearing loss would warrant the use of digital hearing aids with a minimum of 20 processing channels with feedback cancellation capability which would provide superior clarity and intelligibility of speech.
On 1 August 2018 the applicant was assessed by Dr Sylvester Fernandes, ear, nose, and throat surgeon, who produced reports dated 2 August 2018, 16 January 2020, 28 April 2021, 29 October 2021, and 25 November 2021. Dr Fernandes assessed Mr Hawthorn as having sustained compensable BHL of 2.3%, which converts to 0% WPI. In his report dated 29 October 2021[1] the doctor expressed the opinion that hearing aids were “…not reasonable and necessary as a result of the compensable injury in the instant case.” (emphasis in original)
[1] Reply p 14.
On 16 August 2018 the respondent issued to the applicant a notice under the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) containing a denial of liability for the applicant’s claim for the supply and fitting of hearing aids.
Between 28 March 2019 and 20 May 2019 the applicant underwent a trial of hearing aids supplied by Freedom Hearing. He received substantial benefit from this trial. On return of the hearing aids he once again experienced the difficulties with his hearing that he particularised in his statement evidence.
The respondent’s denial of liability was confirmed in subsequent notices issued by it pursuant to ss 78 and 80 of the 1998 Act (dated 20 January 2021) and s 287A of that Act (dated 24 May 2021).
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the supply and fitting of hearing aids is reasonably necessary as a result of hearing loss sustained by the applicant arising out of or in the course of his employment with the respondent.
PROCEDURE BEFORE THE 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 conciliation/arbitration hearing on 31 January 2022 conducted via telephone conference. Mr Young of counsel appeared for the applicant briefed by Mr Glavan. The applicant attended on a separate line. Mr Combe of counsel appeared for the respondent briefed by Ms Bray.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attachments, and
(c) Application to Admit Late Documents (AALD) dated 23 December 2021 with further supplementary report of Dr Fernandes dated 25 November 2921 attached.
Oral evidence
There was no application to cross-examine the applicant or to adduce oral evidence.
The applicant’s evidence
In his statement dated 23 December 2019[2] the applicant notes his last noisy job was with the respondent. He was previously employed by the State Rail Authority of NSW as a trainee engineman and painter where he says that he was exposed to noise from diesel train engines, engine rooms, working in a confined space, whistles, bells, and general railway noise.
[2] ARD p 2.
Mr Hawthorn then particularises the difficulties he experiences as a result of his hearing problems as follows:
(a) difficulty understanding speech from the television, requiring him to turn the volume up to a level which is uncomfortable for his family. If people in the room are talking at the same time that the television is on, he is unable to hear either the television or the conversation in the room;
(b) he cannot understand speech through the telephone, and frequently asks people to repeat themselves. He cannot use the phone if there is background noise;
(c) he has difficulty in understanding speech in background noise, in particular in group situations. He cannot understand one voice among many, which is worse when there is additional background noise such as from the television or radio;
(d) he cannot understand people who speak softly; it sounds like they are mumbling, and he needs to concentrate very hard to pick up what is being said;
(e) he does not enjoy socialising in public as he feels embarrassed when asking people to repeat themselves; he often feels left out of the conversation, and
(f) his family often feel as though they are being ignored as he does not respond when called upon. He notices increased friction with his family as a result of this.
Mr Hawthorn then lists the following changes he noticed whilst trialling the hearing aids:
(a) he was able to understand speech from the television and able to reduce the volume significantly;
(b) he no longer had to ask people to repeat themselves and was able to enjoy social outings more without fear of embarrassment;
(c) he was able to understand speech through the telephone, even if there was background noise from people talking and the television;
(d) his family did not complain as much while he was wearing his hearing aids;
(e) his hearing improved in group situations, with background noise being reduced;
(f) he felt mor confident whilst wearing hearing aids, and
(g) the trouble he had differentiating sounds such as “bb”, “ss”, “pp”, “ff” and “th” was greatly improved to the extent that he could clearly hear and understand these sounds, and allowed him to hear and understand speech with much more clarity.
The medical evidence
Dr Fagan
In his report dated 28 February 2018[3] Dr Fagan records a history consistent with the applicant’s statement evidence. No symptoms of tinnitus are noted nor any relevant previous incidents and conditions apart from a skull fracture in a car accident in 1975. The applicant’s employment history is recorded. The last noisy employer is the respondent. Dr Fagan’s diagnosis is as follows:
“The additional sensorineural hearing loss in the right ear is of uncertain aetiology. There is a possibility the head injury suffered as a result of a car accident in 1975 could have caused the high frequency, sensorineural loss of the right ear as demonstrated in the audiogram. Nevertheless, the hearing loss in the left ear as demonstrated on the audiogram in consistent with industrial hearing loss.
Determining which frequencies should be taken into account when assessing noise induced hearing loss depends on the facts in each individual matter. Where a claimant has been exposed to occupational noise as described to me, and for 37 years as in this matter, and has hearing loss as in this matter, I am satisfied the hearing loss from I000 Hz to 4000 Hz is caused by occupational noise exposure. My assessment is consistent with examples 9. I, 9 .2, 9 .3 and 9 .6 at pages 46 - 5 l of the NSW Workers Compensation Guidelines for evaluation of permanent impairment (4th edition) April 2016.
The thresholds in the right ear should be equated to those of the left ear for calculations of noise induced hearing loss as in accordance with chapter 9.12 of NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment (4th edition) April 2016.”
[3] ARD p 7.
Dr Fagan’s assessment of percentage loss of hearing due to industrial deafness, noting notional date of injury to be after 1 January 2002, and that the calculations of hearing impairment are on the basis of chapter 9 of the WorkCover Guides and the 1988 NAL Tables is set out in the following Table:
Frequency (Hz)
Left (dB HL)
Left Monaural Loss
Right (dB HL)
Right Monaural Loss
Binaural Hearing Impairment
Occupational Hearing Impairment
(% BHI)
500
15
0.0
20
0.6
0.4
0.0
1000
20
0.8
20
0.8
0.8
0.8
1500
25
1.4
30
2.8
2.0
1.4
2000
30
2.1
30
2.1
2.1
2.1
3000
30
1.4
50
4.8
2.3
1.4
4000
55
5.2
85
9.5
5.7
5.2
Total %BHL
13.3
10.9
Tinnitus Loading
0
Presbvcusis correction
-0.8
Total Compensable % BHL
10.1
(As per conversion table) WPI
5%
In his report dated 5 January 2021[4] Dr Fagan comments on the reports of Dr Fernandes dated 2 August 2018 (referred to hereunder) and16 January 2020, and Mr Hawthorn’s statement dated 23 December 2019. The doctor refers to an article by Brian C J Moore in 2016[5] which he says demonstrates that frequencies at 3000 Hz and above are important for understanding speech in various listening environments, especially among background noise. Amplification of these frequencies demonstrates remarkable improvements in speech intelligibility, audibility, and sound localisation. Dr Fagan does however say that speech discrimination on its own does not determine candidacy for hearing aids. If hearing loss is present, and an individual reports difficulty communicating in their daily environments, a hearing aid trial is warranted. Good speech discrimination scores are also important for success with amplification. People who have poor speech discrimination abilities are typically not suitable hearing aid candidates, as having louder input will typically create distortion of sound.
[4] ARD p 14.
[5] Brian C J Moore (2016) A review of the perceptual effects of hearing loss for frequencies above 3 kHz,Dr Fagan refers to the Australian Government’s Hearing Services Program (HSP) which has strict criteria for determining which individuals would benefit from hearing aids. The criteria for hearing aid eligibility includes individuals with a certain degree of high frequency hearing loss if:
(a) the individual has a High Frequency Average Hearing Loss (HIFAL) measured at 2000, 3000 and 4000 Hz which is equal to or greater than 40 dB, and
(b) the individual has a positive attitude and is motivated to wear a hearing device.
Dr Fagan says that the average of the audiometric thresholds obtained by Dr Fernandes and himself demonstrate a high frequency average hearing loss (measured at 2, 3 and 4 kHz) of 42.5 dB. Accordingly, Mr Hawthorn would qualify for hearing aids under the HSP. He has demonstrated motivation to wear hearing aids having undergone a positive trial of hearing aids and been prepared to press his claim for hearing aids through the legal system.
Dr Fagan refers back to the paper by Brian Moore where he concludes:
“There is very strong evidence that NIHL (noise induced hearing loss) for frequencies above 3kHz has adverse effects on the ability to understand speech, especially when background noise is present. Hearing loss for frequencies above 3kHz also adversely affects sound localization”. (emphasis in original)
Dr Fagan refers to the major complaints of Mr Hawthorn of an inability to comprehend speech in person or over the telephone in the presence of background noise, and his observation of improved comprehension of speech following the trial of hearing aids, which is entirely consistent with the conclusions presented by Moore.
Dr Fagan concludes his report with the view that he has no doubt hearing aids would benefit the applicant, as his noise induced hearing loss (NIHL) is a material contributor to his need for hearing aids. Without his NIHL, Dr Fagan doubts that the applicant would require hearing aids.
Dr Fernandes
In his first report dated 2 August 2018[6] Dr Fernandes records the hearing losses in the left and right ears found by him as follows:
[6] Reply p 2.
Frequency
Hz
Left dB
Right dB
Air
Bone
Air
Bone
500
15
15
15
15
1000
20
15
20
15
1500
25
25
25
25
2000
25
25
25
25
3000
30
25
50
50
4000
30
30
75
70+
In that report Dr Fernandes says that as a result of the audiogram he carried out that Mr Hawthorn has an asymmetric hearing loss, with the right side being worse that the left side. Noise induced hearing loss is essentially symmetric, as in most occupational environments, the ears are exposed to similar sound levels bilaterally, even when the apparent noise source comes from one side. The right ear is hence equated to the left. As a result, the hearing loss on the left side has been taken into consideration for the calculation of the noise induced hearing loss on the right side.
Dr Fernandes says that frequencies below 2 KHz are not included in the calculation because the configuration of the audiogram obtained in the lower frequencies is not comparable with that of noise induced hearing loss. He says that after consideration of the nature and duration (immission levels) of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 2, 3 and 4 Hz are caused by his occupational noise exposure.
Dr Fernandes comments on the report of Dr Fagan, noting that he obtained higher thresholds. He says that such may occur, inter alia, as a result of contamination by temporary threshold shift (TTS), by functional hearing loss or by some other source of fluctuating loss. He says:
“Nevertheless being a behavioural test, it should be obvious that when hearing levels on contemporary serial audiograms differ in the absence of an obvious and identifiable intervening contributory causative incident detrimental to hearing, the best recorded audiogram is likely to be the most precise and correct one.”
Dr Fernandes says that hearing aids are not reasonably and necessary as a result of the compensable injury, as in the audiogram that he obtained it appears that the speech reception frequencies are not significantly affected. Also the speech recognition thresholds are 95% at 55 dB on the left and 85% at 70 dB on the right. In answer to a specific question put to him, Dr Fernandes expresses the belief that Mr Hawthorn’s hearing loss is partially due to his employment.
In his report dated 16 January 2020[7] Dr Fernandes gave the following answers to a question put to him, namely, if he still believed that the provision of hearing aids was not “reasonable and necessary”, such question premised on the basis that the applicant had found hearing aids to be of benefit to him:
[7] Reply p 9.
(a) “Mr Gary Hawthorn has an asymmetric hearing loss of which only the hearing loss at frequencies 2, 3 and 4KHz on the left side and an equal amount on the right side is attributable to noise exposure (and presbycusis) and therefore
compensable”;
(b) the losses on the left side were as set out in the Table in [23] above;
(c) “Such a level of loss should not interfere with an individual’s ‘activities of daily living’”;
(d) “Research has shown that a person becomes hearing handicapped only when the average hearing loss reaches a level of 40 dB or more. Hence average hearing loss of 40 dB in the 5 frequencies 500, 1000, 2000, 3000, 4000 Hz is a guideline. Such is not apparent in the instant case”;
(e) “Hearing aids are essentially amplifiers”, and
(f) “Even normal hearing individuals tend to enjoy amplified sound (music) within limits.”
In his report dated 28 April 2021[8] Dr Fernandes says that the paper by Brian Moore quoted by Dr Fagan:
“…is not relevant in the instant case as the applicant does not have a compensable high frequency loss. This paper is essentially a plea for the inclusion of the higher frequencies for compensation in medicolegal cases. It also does not really address hearing aid utility in high frequency losses.
In submitting this paper I suspect Dr P. Fagan is considering the high frequency loss on the right side which is not compensable.” (emphasis in original)
[8] Reply p 12.
In his further supplementary report dated 25 November 2021[9] Dr Fernandes uses these calculations to arrive at a figure of 3.3% Binaural Hearing Impairment (BHI) as follows:
[9] AALD p 2.
Frequency Hz
Left dB
Right dB
Total % BHI
Occupational
% BHI
Air
Bone
Air
Bone
500
15
15
15
15
0
0.0
1000
20
15
20
15
0.8
0.0
1500
25
25
25
25
1.4
0.0
2000
25
25
25
25
1.1
1.1
3000
30
25
50
50
2.3
1.4
4000
30
30
75
70+
2.3
0.8
7.9
3.3
Following that table in the report Dr Fernandes then notes that the BHL expressed as a percentage is 3.3. When a deduction of 1.0 is made for presbycusis, the final BHL (incorrectly stated in the report as “Whole Body Impairment”) is 2.3, which converts to 0% WPI.
SUBMISSIONS
The submissions of the parties were recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.
Applicant
The applicant notes that there is no dispute that the respondent is his last noisy employer, and that the history recorded by Dr Fagan in his report dated 28 February 2018 accords with the applicant’s evidence in his statement. The applicant notes that the fact that he has undergone a hearing aid trial with Freedom Hearing which was of benefit to him has the consequence that his claim is not in respect of a theoretical benefit but an actual practical benefit has been shown by the supply and fitting of hearing aids,
The applicant notes that the results obtained by Dr Fagan and Dr Fernandes on hearing testing are not too dissimilar, although there is some difference at 3000 and 4000 Hz, where Dr Fagan’s reading is higher.
The applicant refers to his difficulty with speech discrimination in the context of the paper of by Brian Moore quoted by Dr Fagan, who nevertheless acknowledges that speech discrimination testing on its own does not determine candidacy for hearing aids.
The applicant notes Dr Fagan’s reference to the Australian Governments HSP and submits that, on Dr Fagan’s calculations that both the audiometric thresholds obtained by him and Dr Fernandes demonstrates a high frequency hearing loss (measured at 2000, 3000 and 4000 Hz) of 42.5 dB, he would qualify for hearing aids under the HSP.
The applicant submits that Dr Fernandes has used the wrong, higher, test as to whether he is entitled to hearing aids as a result of industrial deafness. The correct test is if the supply and fitting of hearing aids is “reasonably necessary” as a result of injury, not “reasonable and necessary” as Dr Fernandes states throughout his reports.
The applicant submits that Dr Fernandes’ assessment that he has sustained 0% WPI as a result of the injury of industrial deafness is not relevant to his entitlement to treatment pursuant to s 60 of the 1987 Act in the form of the supply and fitting of hearing aids. The correct test to be applied in determining if the supply and fitting of hearing aids for industrial deafness is that referred to in Murphy v Allity Management Services Pty Ltd[10], that is, does the injury, in this case industrial deafness, materially contribute to the need for medical treatment. In this regard the applicant relies on what was said by Arbitrator (as he then was) Isaksen said in Stuckings v Rail Corporation New South Wales[11].
[10] [2015] NSWWCCPD 49 (Murphy).
[11] [2018] NSWWCC 145 (Stuckings).
The applicant submits that even on the assessments of Dr Fernandes at the 3000 and 4000 frequencies, when comparing the hearing loss in the left ear with the total loss in the right ear (air 30/50, or three fifths at 3000, and air 30/75 or about three sevenths in the right ear), these findings are sufficient to show a material contribution to the total hearing loss by the noise induced loss such as to justify the reasonable necessity for hearing aids. The applicant nevertheless urges acceptance of the audiogram of Dr Fagan, which contains a higher recorded loss in the left ear of air of 55 dB at 4000 Hz. The applicant refers to the case of Bluescope Steel (AIS) v Sekulovski[12] in support of his submission that there does not need to be a high level of noise induced loss of hearing to prove that such loss materially contributes to the need for hearing aids. In that case the injured worker’s percentage of BHL attributable to the work injury had been previously assessed by a medical panel which issued a certificate pursuant to s 122(6) of the 1998 Act containing an assessment of BHL of 1.9%. That certificate of the medical panel was conclusive as to the degree of hearing loss. The worker then made a claim supported by an assessment of 7.1% BHL, claimed to be all work-related. The Senior Arbitrator at first instance and Deputy President Wood on appeal found that the evidence established that the work-related component of the worker’s hearing loss materially contributed to the need for treatment, the supply of hearing aids, in accordance with Murphy.
[12] [2018] NSWWCCPD 48 (Sekulovski).
The applicant submits that, applying the correct test of showing that the supply of hearing aids is reasonably necessary as a result of injury, and having regard to both the assessments of Dr Fagan and Dr Fernandes, there should be a finding that the noise induced hearing loss from which he suffers materially contributes to the need for hearing aids.
Respondent
In opening submissions the respondent refers to the case of Thi No Dang v Canadian Bacon Pty Ltd[13] a decision of Arbitrator Kerry Haddock dated 4 February 2021.
[13] [2021] NSWWCC 37 (Dang).
The respondent submits that the mere fact that Dr Fernandes uses the term “reasonable and necessary” instead of “reasonably necessary” in the process of deciding whether or not the respondent should be ordered to pay for the costs of hearing aids for the applicant is not fatal to the acceptance of his opinion.
There is no dispute that there is a sensorineural hearing loss in the right ear of uncertain origin.
The respondent submits that, based on the assessment of Dr Fernandes, the assessment of compensable hearing loss in the ranges of 2000, 3000 and 4000 Hz is mild, and that the supply and fitting of hearing aids is not reasonably necessary as a result of such loss. His assessment of the hearing loss at the frequency of 4000 is less than 40 dB, as is the case with hearing loss at the 2000 and 3000 levels. The total BHI is 7.9%, and occupational BHI 3.3% when the non-occupational hearing loss in the right ear is deducted from the total. The respondent submits that his is a minor hearing loss. When the deduction of 1.0 is made for presbycusis, the final result is 2.3% BHL (described on p 2 of Dr Fernandes’ further supplementary report dated 25 November 2021 as “Whole Body Impairment”). Two point three percent of 7.9% is 29%, a low proportion of occupational BHL compared to the total percentage BHL.
The respondent submits that the test carried out by Dr Fernandes is likely to be the more reliable one based on the reasoning in his report dated 2 August 2018 quoted at [26] above.
The respondent also relies on the comments in respect of speech recognition thresholds being 95% at 55 dB on the left and 85% at 70 dB on the right, referred to at [27] above.
The respondent refers to the calculations of Dr Fagan of hearing losses at 2000 Hz, 3000 Hz and 4000 Hz (for the left ear, being the work caused industrial deafness), namely 30 dB, 30 dB and 55 dB respectively. The respondent submits that Dr Fagan in his report dated 5 January 2021 incorrectly calculates the average of these three losses at 42.5 dB (see [20] above), whereas the correct calculation of the average of these three readings is 38.3 dB, less than the 40 dB which is the level at which Dr Fernandes says hearing aids are required. Therefore the opinion of Dr Fagan that the applicant would qualify for hearing aids under the Australian Government’s HSP is incorrect. This is a fatal flaw in his reasoning that, as a result of the applicant’s compensable hearing loss, hearing aids are reasonably necessary.
The respondent submits that, based on the opinion of Dr Fernandes, an average loss of 40 dB is the “gateway” at which the reasonable necessity for the supply of hearing aids becomes apparent.
The respondent notes that averaging the three losses found by Dr Fernandes at 2000 Hz, 3000 Hz and 4000 Hz, namely 25 dB, 30 dB and 30 dB, an average loss of 28.3 dB is obtained, well below the 40 dB gateway.
Returning to the case of Dang, the respondent notes in that case Arbitrator Haddock at [83] found that a finding of 1.5% BHL which resulted from loss of hearing in the respondent’s employ was insufficient to show that the supply of hearing aids was reasonably necessary as a result of injury. Arbitrator Haddock in her decision referred to the “common sense test of causation” relied upon by Roche DP in Murphy, based on what was said by Kirby P in Kooragang Cement Pty Ltd v Bates[14].
[14] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
Applicant in response
The applicant also notes the common sense of causation referred to in Kooragang, and notes that the length of employment of the applicant worker in the matter of Dang was brief only, compared to the 22 years during which the applicant was employed by the respondent in undisputed noisy employment in this case.
The applicant also refers to the facts in Sekulovski, noting in that case that the binding finding of a medical panel of 1.9% BHL was not determinative of the reasonable necessity for the supply of hearing aids as a result of injury.
The applicant also notes that the apparent error in the calculations submitted by the respondent was not put to Dr Fagan.
The applicant also submits that there can be multiple causes of hearing loss, and that such loss does not have to be “real and substantial” before there can be a finding that the compensable loss of hearing materially contributes to the requirement for the supply of hearing aids.
FINDINGS AND REASONS
At the outset it should be noted that the applicant was in error in submitting that the period of employment of the applicant worker in Dang was short. My reading of that case indicates that the worker was employed for a lengthy period, apparently from 2000 until the deemed date of injury of 28 May 2019. Arbitrator Haddock did state in her reasons that the applicant’s evidence regarding exposure to noise was quite brief, not that her period of employment was brief.
It is axiomatic however that each case depends on its own facts, and that while results in other hearing loss cases are helpful, the focus must be on what was the situation of the applicant’s employment with the respondent in this case and its sequelae in terms of his loss of hearing.
The law is correctly and succinctly set out by Arbitrator Haddock at [69]-[76] in Dang, with reference to the decisions in Kooragang, Diab v NRMA Ltd[15], Murphy, and also Comcare v Martin[16], which was determined having regard to the Commonwealth workers’ compensation scheme.
[15] [2014] NSWWCCPD 72.
[16] [2016] HCA 43.
I do not accept the applicant’s submission in [38] above that the left ear air frequencies as a proportion of the right ear air frequencies should be used as a measure to show a material contribution to the total hearing loss by the noise induced loss, such as to justify the reasonable necessity for hearing aids. This submission was not supported by reference to the opinion evidence of Dr Fagan or Dr Fernandes. The frequencies in the left and right ears are used to calculate total BHI and occupational BHI. The proportion of occupational BHI to total BHI is a factor to be considered when determining if occupational BHI materially contributes to the need for hearing aids. Both the applicant and the respondent made submissions on this point.
In Stuckings, Arbitrator Isaksen at [48] was prepared to accept that noise induced hearing loss between one-fifth (20%) and one-third (33%) of overall hearing loss amounts to a material contribution to the applicant worker’s need for hearing aids. He went on to say:
“Moreover, it is not just a consideration of the ratio between noise induced hearing loss and overall hearing loss. The noise induced hearing loss is a material contribution to the need for hearing aids because that injury has caused an increase in the overall hearing loss that the applicant must live with.”
I do not agree with that observation if what was meant to be conveyed was that any level of noise induced hearing loss, even a very low level, is a material contribution to the need for hearing aids because that injury has caused an increase in the overall hearing that an injured worker must live with. The learned Arbitrator may have been referring to the specific facts of that case. What must be determined is if the work caused loss of hearing, industrial deafness, materially contributes to the need for hearing aids.
In this case on Dr Fernandes’ assessment, the ratio between noise induced BHL of 2.3 and overall BHL of 7.9 is 29% (rounded). On Dr Fagan’s assessment noise induced BHL is 10.1 and overall BHL is 13.3, and the ratio is therefore 76% (rounded). This demonstrates the wide variation that can occur in assessments of hearing loss, commented upon by Dr Fernandes as set out in [26] above. No doubt Dr Fernandes would advocate his assessment is based on the best recorded audiogram and likely to be the most precise and correct one. There is however nothing in the evidence to suggest that that audiogram should be accepted in preference to that of Dr Fagan. Dr Fagan assessed the applicant on 8 December 2017 and he confirmed that reliable repeatable audiometric responses were obtained. Dr Fernandes assessed the applicant on 1 August 2018 and he said that Mr Hawthorn responded well to the subjective aspects of the audiogram which was carried out in accordance with the WorkCover Guides Chapter 9.8, p 48. An accurate hearing test was achieved, for there was very good intratest reliability.
Dr Fernandes says that in the audiogram that he obtained it appears that the speech reception frequencies are not significantly affected. He noted the speech reception thresholds as 95% at 55 dB on the left and 85% at 70 dB on the right.
Dr Fernandes notes in his report dated 16 January 2020 that it is not apparent in the applicant’s case that his average hearing loss in the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 dB or more. He uses this observation with reference to the research to which he refers which has shown that a person becomes hearing handicapped when the average hearing loss reaches a level of 40 dB or more. On his air and bone readings for the left ear set out in the BHI table in [30] above, the average is 23.33 dB. The average based on the assessment of Dr Fagan for the left ear in the table in [17] above, noting that air and bone readings are not listed separately, is 29.16.
I agree with the respondent’s submission in [46] above that Dr Fagan’s calculation of hearing losses at 2000 Hz, 3000 Hz and 4000 Hz (for the left ear, being the work caused industrial deafness), namely 30 dB, 30 dB and 55 dB respectively, is incorrect, and that the correct calculation of the average hearing losses at these levels is 38.3 dB. Therefore Dr Fagan’s opinion that the applicant would qualify for hearing aids under the Australian Government’s HSP is incorrect. However, while that result means that the applicant would not qualify for hearing aids under the Australian Government’s HSP, that would not mean that his degree of noise induced hearing loss does not materially contribute the need for hearing aids. It is a matter to be taken into account along with the other evidence. The second criteria for hearing aid eligibility under the Australian Government’s HSP is that the individual has a positive attitude and is motivated to wear a hearing device. I accept that the applicant satisfies this requirement. He has had a successful trial of hearing aids and is motivated to wear them.
Dr Fagan relies on the paper by Brian Moore which he says demonstrates that the frequencies at 3000 Hz and above are important for understanding speech in various listening environments, especially amongst background noise. Amplification at these frequencies demonstrates remarkable improvements in speech intelligibility, audibility, and sound localisation. He says:
“It is known that the sound of ‘k’ is concentrated around 3000Hz whilst ‘f’, ‘th’ and ‘s’ are concentrated at 4000Hz. Difficulty comprehending these sounds would not assist with speech intelligibility.”
The trouble that the applicant has in differentiating and understanding sounds is set out in [15 (g)] above. Two of those sounds are referred to by Dr Fagan as being known to be concentrated at 4000 Hz (‘th’ and ‘s’). The trial of hearing aids by the applicant greatly improved his ability to hear and understand these sounds.
Dr Fernandes discounts Dr Fagan’s reliance of the paper by Brian Moore for the reason set out in [29] above. He theorises that Dr Fagan is considering the high frequency loss on the right side which is not compensable. Dr Fernandes emphasises that Mr Hawthorn does not have a compensable high frequency loss. It is not clear whether Dr Fernandes is referring here to the degree of WPI he assesses as attributable to the noise induced loss of hearing in the left ear, 0%, or the fact that the applicant should not be compensated by the supply of hearing aids for this loss. He does say that the paper by Brian Moore is “essentially a plea for the inclusion of the higher frequencies for compensation in medicolegal cases.” In the absence of any other evidence or excerpts from the paper, I do not accept that. It seems more likely that when Dr Fernandes refers to compensable loss, he is referring to the fact that Mr Hawthorn is not entitled to compensation as a result of his 0% WPI assessment. Such an assessment does not disentitle a worker to medical treatment in the form of the supply and fitting of hearing aids if such treatment is found to be reasonably necessary as a result of injury, in this case noise induced hearing loss.
It is not disputed that the applicant’s loss of hearing in his left ear is noise induced and that he has a symmetrical such loss in the right ear, hearing loss attributable to noise exposure being symmetrical in each ear. Dr Fernandes makes this quite clear in the quote from his report dated 16 January 2020 set out in [28(a)] above.
The fact that Dr Fernandes consistently refers to the requirement for the supply of hearing aids to be “reasonable and necessary” rather than the less demanding test of “reasonably necessary” is not fatal to the respondent’s defence of the applicant’s claim, but is a factor to be considered along with the other evidence.
At [58] in Murphy, Roche DP said:
“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).”Dr Fernandes does say that research has shown that a person becomes hearing handicapped only when the average hearing loss reaches a level of 40 dB or more. Research may show that but in this case, having regard to all of the evidence, and in particular:
(a) the fact that Mr Hawthorn underwent a successful trial of hearing aids;
(b) the improvement in his speech recognition during that trial;
(c) the positive attitude of Mr Hawthorn and his motivation to wear hearing aids;
(d) notwithstanding the discrepancy in results of the audiograms obtained by Dr Fagan and Dr Fernandes, even on Dr Fernandes’ assessment, the ratio between noise induced BHL and overall BHL is 29%. The ratio based on the result of the audiogram of Dr Fagan is 76%;
(e) the use by Dr Fernandes of the more demanding test of reasonable and necessary for the applicant to be eligible for medical treatment pursuant to s 60 of the 1987 Act, and
(f) the fact that there is nothing in the evidence to show that the assessment of hearing loss by Dr Fagan should be rejected in favour of the assessment of Dr Fernandes,
I find that the supply and fitting of hearing aids to the applicant is reasonably necessary as a result of injury, namely, the bilateral loss of hearing due to noise exposure. The injury has materially contributed to the need for hearing aids.
The respondent is to pay for the provision of bilateral hearing aids for the applicant pursuant to s 60 of the 1987 Act and the Workers Compensation (Hearing Aid Fees) Order 2021.
International Journal of Audiology, 55:12, 707-714, DOI: 10.1080/14992027.2016.1204565.
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