Honchera and Comcare (Compensation)

Case [2016] AATA 33

Honchera and Comcare (Compensation) [2016] AATA 33 (29 January 2016)

Division

GENERAL DIVISION

File Number(s)

2014/0213

Re

Edmund Honchera

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries

Date 29 January 2016
Place Canberra

The decision under review is affirmed.

............................[sgd].........................................

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employees – claim for hearing loss and tinnitus – whether injury or disease – whether contributed to, to a significant degree, by employment – decision under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7.

Cases

Dunn and Military Rehabilitation and Compensation Commission [2012] AATA 672

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

O’Kane and Comcare [2013] AATA 722

O’Kane v Comcare (2014) 221 FCR 482

Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

Deputy President Gary Humphries

29 January 2016

Background

  1. Mr Edmund Honchera has been driving ACTION buses for 30 years, but in recent years has developed some hearing loss. He has difficulty understanding speech against background noise, on television or over the telephone. He has also developed bilateral tinnitus. He is 66 years old.

  2. Mr Honchera has brought a claim for workers’ compensation against his employer because he believes that his binaural hearing loss is related to loud noises he has been exposed to during his time with ACTION. For example, at ACTION’s Kingston depot, which was enclosed, he would frequently be required to move around between buses as their engines were being started up in the morning. He also points to other noises which were part of his employment: trucks and motorcycles on the road, 2-way radio noises, the noise made by schoolchildren on school runs, rattling chassis and engine noises. In particular, he points to the noise made by ACTION’s so-called 301 Trams, modified trucks which ran a route through Canberra’s Civic centre during the 1990s and which he frequently drove.

  3. His claim is for compensation under ss 14, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 15 October 2013, Comcare denied liability for Mr Honchera’s hearing loss under s 14, a decision which it reconsidered but affirmed on 19 November 2013. On 16 January 2014, Mr Honchera applied to have that decision reviewed by this Tribunal.

  4. At the initial hearing of this application on 14 and 15 May 2015, Mr Honchera sought to bring his claim under the provisions of s 7(2) and (3) of the Act. Section 7(2) is set out below.

    The applicable law

  5. Section 14 of the Act provides as follows:

    (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    In turn, “injury” is defined in s 5A, as follows:

    (1) In this Act:

    "injury" means:

    (a) a disease suffered by an employee;…

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Details
AGLC
Honchera and Comcare (Compensation) [2016] AATA 33
Case
[2016] AATA 33
Decision Date

CaseChat Overview and Summary

Honchera has brought a claim for compensation against Comcare, seeking damages for hearing loss and tinnitus, alleging they were caused by his employment with ACTION buses. The Administrative Appeals Tribunal (AAT) was asked to determine whether Honchera's conditions qualified as compensable injuries or diseases under the relevant legislation, and if his employment contributed significantly to these conditions. The Tribunal considered the medical evidence and testimonies of Dr Joseph Scoppa and Dr David Matison, both of whom were called by the parties. Dr Scoppa diagnosed induced industrial deafness and tinnitus in both ears, while Dr Matison could not make a definitive diagnosis due to conflicting evidence and noted other contributing factors to the deterioration of Honchera's hearing. The Tribunal examined the nature of Honchera's conditions, noting that his hearing loss was gradual rather than sudden. The key issue was whether these conditions were injuries or diseases and whether they were significantly contributed to by his employment. The AAT found that while there was evidence of Honchera's hearing loss and tinnitus, the balance of probabilities did not support the claim that his employment was a significant contributing factor. The Tribunal concluded that Comcare was not liable to pay compensation for Honchera's conditions under the relevant sections of the Act. The AAT affirmed the decision denying Comcare's liability for Honchera's claimed hearing loss and tinnitus.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is also noted that, as a younger man, Mr Honchera owned and occasionally used a .22 rifle. The medical evidence There was evidence that Mr Honchera’s hearing was tested before he began work with ACTION, and annually thereafter. For many years there was no report by his GP of any issues with his hearing. Mr Honchera could not recall exactly when he became aware of an issue with his hearing; it was a gradual thing. It is now difficult for him to follow conversations. He testified that the ringing in his ears caused by the tinnitus is constant, making it worse than the hearing loss. It interferes with watching television and movies, and it also causes him to wake at night, despite taking medication to help him sleep. He said that he would generally wake at about 1am and be unable to return to sleep. Evidence was given by Dr Joseph Scoppa (called by Mr Honchera) and by Dr David Matison (called by Comcare). Both doctors, when asked to express an opinion as to whether Mr Honchera’s condition was best described as an injury or one of gradual onset, indicated that it was best described as an ailment (i.e. the latter – a disease for the purposes of s 5A). Dr Scoppa diagnosed induced industrial deafness in both ears, with a further loss in the right ear of unknown cause. Dr Matison said I can’t make a definitive diagnosis in this case, having received conflicting evidence about Mr Honchera’s condition. He pointed out that Mr Honchera has recently experienced steadily deteriorating hearing under relatively quiet working conditions, so there is another factor involved. He observed that noise induced hearing loss ceases to progress once the offending noise itself ceases. Having thus discounted occupational causes, he was unable to say what was causing the further deterioration in Mr Honchera’s hearing. The doctors gave evidence of the general conditions required to produce hearing loss. They agreed that the higher the noise level, the shorter the period that is necessary before damage is done to the ear. Dr Scoppa said that with a weighted average exposure of 88 dBA, the safe exposure limit is four hours, but at 91 dBA it is two hours. He said that the acceptable period of exposure halves with every increase of three dBA. At 140 dBA there is instantaneous damage to your hearing potentially. It was put to the Tribunal that the appropriate or safe level of noise exposure is a weighted average of 85 dBA over an eight hour day. This was based on the exposure standard for noise contained in Safe Work Australia’s Managing Noise and Preventing Hearing Loss at Work Code of Practice, dated December 2011. Both doctors agreed however that people react differently to noise. Dr Scoppa suggested that five percent of the population will suffer from hearing loss if the weighted average is just 80 dBA over an eight hour day. An apparent difference between the doctors emerged with respect to the way in which the period of noise exposure is to be measured. Dr Matison indicated that noise should be measured on a dosage basis, so that exposure is averaged over a given period of time. As an example, he said that a worker exposed to an average 85 dBA noise intensity over a working week but who was not exposed to that intensity in alternate weeks could be said to have an effective noise dosage of less than 85 dBA. Dr Scoppa, by contrast, emphasised that, if noise levels exceed the safe level on any particular day, such exposure is capable of causing hearing damage, irrespective of the averaged dosage.ConsiderationAre Mr Honchera’s conditions injuries or diseases?

Decision

Reasons for decision

On this basis, there is insufficient evidence to trigger the beneficial provisions of s 7(2).Conclusion The Tribunal is not satisfied, on the balance of probabilities, that Mr Honchera’s hearing loss and tinnitus has been contributed to, to a significant degree, by his employment with ACTION buses. The Tribunal finds that Comcare is not liable to pay compensation for permanent impairment or non-economic loss under ss 24 and 27 of the Act on the basis that Mr Honchera’s claimed hearing loss and tinnitus do not qualify as compensable injuries. Accordingly the Tribunal affirms the reviewable decision of 19 November 2013 denying liability under s 14 of the Act.

Ratio Decidendi

Legal Principle Established

It was put to the Tribunal that the appropriate or safe level of noise exposure is a weighted average of 85 dBA over an eight hour day. This was based on the exposure standard for noise contained in Safe Work Australia’s Managing Noise and Preventing Hearing Loss at Work Code of Practice, dated December 2011. Both doctors agreed however that people react differently to noise. Dr Scoppa suggested that five percent of the population will suffer from hearing loss if the weighted average is just 80 dBA over an eight hour day. An apparent difference between the doctors emerged with respect to the way in which the period of noise exposure is to be measured. Dr Matison indicated that noise should be measured on a dosage basis, so that exposure is averaged over a given period of time. As an example, he said that a worker exposed to an average 85 dBA noise intensity over a working week but who was not exposed to that intensity in alternate weeks could be said to have an effective noise dosage of less than 85 dBA. Dr Scoppa, by contrast, emphasised that, if noise levels exceed the safe level on any particular day, such exposure is capable of causing hearing damage, irrespective of the averaged dosage.ConsiderationAre Mr Honchera’s conditions injuries or diseases? Mr Honchera gave evidence that his hearing loss was a gradual thing, not a sudden event. He first obtained an assessment of his hearing loss through Dylans Hearing Pty Ltd on 14 June 2012 and the Tribunal finds that, if there is an injury relating to hearing loss, it occurred – for the purposes of s 7(4) at least – on that date. Similarly, the first evidence of his obtaining medical treatment for his tinnitus was his consultation with his GP, Dr Tim Watson, on 30 July 2012, and that date will thus serve as the date of any injury relating to his tinnitus. Assuming for the moment that the necessary causal connection specified in the Act between his conditions and his employment can be established, the question arises of whether each condition is an injury (other than a disease) or a disease. In both Sandercock[1] and O’Kane[2] the Tribunal characterised hearing loss occurring over an extended period as an injury. In the former case the Tribunal found that tinnitus could be either an injury or disease, and in the latter case found that it was, in that instance, an injury.[1] [2013] AATA 517.[2] [2013] AATA 722. In O’Kane Senior Member Prof Creyke made these comments in relation to the hearing-related conditions of the applicant, himself an ACTION bus driver (at [52]-[53]):The claim is that his hearing loss was due to loud continuous noise from driving buses in combination with the effects of ageing, and possibly a familial disposition to hearing loss, alongside the injury from the assault in 1996. That means that Mr O’Kane’s hearing loss is due to combined effects which are categorised differently. The assault, a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’, and the ‘loud continuous noise’ from driving buses which damages the sensitive hair cells of the inner ear, perpetuated and worsened over the period of his driving noisy buses and the 301 tram would both be ‘injuries’. The age-related and familial predisposition would be characterised as slowly degenerating or congenital conditions and hence, if employment-related, would be ‘diseases’. Since it is the contribution of the former categories including hearing loss from bus driving, which are being considered in this claim, the Tribunal finds that Mr O’Kane’s hearing loss relates to an ‘injury’, namely, the damage to the sensitive hair cells of the inner ear.