Hudson v State of New South Wales (NSW Ambulance Service)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hudson v State of New South Wales (NSW Ambulance Service) [2024] NSWPIC 336
APPLICANT:	Pauline Hudson
RESPONDENT:	State of New South Wales (NSW Ambulance Service)
MEMBER:	Diana Benk
DATE OF DECISION:	25 June 2024
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, that the minor degree of occupational hearing loss was insufficient to justify the provision of hearing aids; differing results of audiograms relied upon by the applicant and respondent; detailed examination of the medical evidence; Murphy v Allity, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Bluescope Steel v Sekulovksi, 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 2023.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s employment has materially contributed to the need for hearing aids. 2. The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury. 3. The respondent is liable for the costs of supply and fitting of digital hearing aids on the production of accounts and/or receipts pursuant to s 60 of the Workers Compensation Act1987 and the Workers Compensation (Hearing Aid Fees) Order 2023.

STATEMENT OF REASONS

BACKGROUND

Pauline Hudson, (the applicant) claimed lump sum compensation (10% whole person impairment) and treatment expenses (hearing aids) which she claimed to arise from noise exposure whilst employed as a paramedic and hospital liaison officer with the respondent (NSW Ambulance Service).
Following assessment of the claim, the respondent denied liability maintaining whilst hearing loss was present, it was not noise induced and so not an injury received in the course of employment as required by the Workers Compensation Act 1987 (1987 Act).
An application was filed in the Personal Injury Commission (the Commission) claiming the above entitlements.
The usual case management pathway was employed and at preliminary conference the parties requested I refer the impairment dispute to a Medical Assessor.
In his capacity as Medical Assessor, Dr P Niall made a binding finding of a 15.4% binaural hearing loss, 14.7% was due to non work related factors, concluding that only 0.7% of the loss was due to occupational factors, as seen by his findings in the 3000hz frequency testing. It was further concluded the provision of hearing aids were not necessary as a result of any workplace injury, an opinion the parties acknowledge was not binding. Attempts to conciliate this element of the dispute were unsuccessful, requiring a formal determination on whether the provision of hearing aids are reasonably necessary treatment expenses arising from any workplace injury.
At arbitration, the applicant was represented by Mr Hickey of counsel instructed by Mr Kardum. The respondent was represented by Mr Stiles of counsel instructed by Ms Bowdler. Ms Sardona was the insurer representative.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD); the Reply, Applications to Admit Late Documents (AALD) filed by the respondent on 18 January 2024 and 12 December 2023 and by the applicant on 12 January 2024 and the law found in the 1987 Act. No oral evidence was adduced.

EVIDENCE

Applicant’s evidence

Statement of the applicant

The applicant submits there was no prior history of hearing loss, tinnitus, surgery, trauma, infection, noise exposure (either industrial or recreational) and she had a ‘normal’ hearing pre-employment medical with the respondent. Noise exposure by way of on board sirens, other emergency sirens, alarms, extraction equipment, helicopters, people screaming and shouting, traffic noise and portable radios (attached to her shoulders) was recounted, which at times required her to shout to be heard for prolonged periods. Her role as a hospital liaison officer exposed her to sirens at hospitals and stations when the ambulances were arriving and departing.
The applicant disclosed struggles with every day conversations requiring lip reading; using the loudspeaker on the telephone; avoiding loud social situations and use of subtitles on zoom calls. She is hopeful that hearing aids will improve the quality of her life.[1]
[1] Folios 1 to 4 of the ARD.

Pre-employment medical assessment[2]

[2] Folio 6 of the AALD filed by the applicant on 12 January 2024

M Sullivan (full name and qualifications unknown) on 23 March 2011 recorded a “normal” audiogram with no loss demonstrated in either the mild, moderate or severe brackets of testing.

Dr Tamhane, Ear Nose and Throat Surgeon[3]

[3] Folio 21 of the ARD.

Qualified by the applicant, the report dated 6 March 2023, demonstrated bilateral high tone sensorineural hearing loss in the 2000Hz, 3000Hz and 4000Hz fields resulting in a conclusion that these losses were attributable to exposure to loud noise at work and hearing aids were reasonably necessary.
In his report dated 18 September 2023,[4] Dr Tamhane again confirmed the bilateral moderate sensorineural hearing loss deteriorating in a downward sloping fashion in the low, mid and high tones and that in the absence of other contributing factors that the loss (more evident in the higher tones) was due to noise exposure in the workplace.
[4] Folio 28 of the ARD.
Dr Tamhane supported the provision of digital hearing aids arising from work related noise exposure to assist the applicant with optimal audibility, intelligibility and comfort with background noise and considered they would assist with speech discrimination and understanding speech.

Jaanvi Kapadia, clinical audiologist

In the report dated 22 March 2023,[5] it was noted the audiogram undertaken on 19 October 2022 showed mild to moderate severe sensioneural hearing loss in the right ear and a moderate to moderately severe sensorineural hearing loss in the left ear impacting on conversations with friends, social gatherings, mobile phone use and television reception. Hearing aids were recommended with the outcome likely resulting in improved speech understanding, improved sound quality and better localisation of sounds such as on devices, (mobile telephones and television).

Respondent’s evidence

[5] Folio 31 of the ARD.

Dr Kenneth Howison, Ear Nose and Throat Surgeon

On 18 May 2023, Dr Howison concluded the cause of the hearing loss was unknown and the only means of treating the bilateral sensori-neural hearing loss was the use of bilateral digital hearing aids, emphasising however that the loss was of an unknown origin.[6]
[6] Folio 7 of the Reply
Dr Howison reconciled the audiograms and noted Dr Tamhane’s audiogram showed a bilateral high tone sensori-neural hearing loss more marked in the high frequencies. The audiogram of Ms Kapadia (Bloom Audio) showed a mild hearing loss across all frequencies between 500-8000Hz and his own audiogram (which he preferred) showed a bilateral flat sensori-neural hearing loss in all frequencies. Dr Howison expressed concern about a lack of uniformity in the audiograms but nonetheless concluded the pattern of loss as identified on his audiogram was unrelated to any workplace exposure to noise and whilst hearing aids were the only treatment available to correct the loss, the respondent had no liability in these circumstances. It was on this basis that the respondent declined liability.

Medical Assessment Certificate – Dr Paul Niall

The certificate dated 13 March 2024 diagnosed a bilateral mild sensorineural hearing loss of a flat to gently rising configuration. Dr Niall concluded
“The claimant has suffered a gradual process injury due to chronic hazardous occupational noise exposure.
The diagnosis is occupational noise-induced hearing loss (industrial deafness)
The claimant also has an additional hearing loss of uncertain aetiology not due to noise or other occupational injury or exposure.
The sensorineural hearing loss at 3-4kHz in both ears is attributable to hazardous occupational noise exposure.
The hearing loss at lower frequencies is not due to noise exposure and is accordingly excluded from the compensation assessment”.
In his further certificate dated 24 April 2024, Dr Niall reported (unedited)
“Hearing loss due to chronic exposure to hazardous occupational noise effects principally the high tones and over time may extend to a lesser loss at the low tones. This worker’s hearing loss effects mainly the low tones lessening toward the high tones. It is not generally due to hazardous noise but some loss due to the injury cannot be reliably excluded at the high tones. My assessment of this is set out above. The parties’ doctors’ reported observations differ from each other and are at generally more intense dBA levels than were established as thresholds of hearing in my testing the result of which is accepted.”
As regards the need for hearing aids, the report concludes (unedited)
“As described above Ms Hudson has a bilateral mild sensorineural hearing loss of a flat to gently rising configuration. In Bilateral Hearing Impairment terms this amounts to 15 .4%. That due to the referred injury amounts to 0.7%. The hearing loss is not primarily due to the referred injury. In my assessment hearing aid provision is not reasonably necessary due to the injury referred.”

Submissions

Both parties agree the only issue is whether the provision of hearing aids is “reasonably necessary” as a result of the accepted injury.
The respondent accepts the Medical Assessor found a small portion of the hearing loss (0.7%) to be due to employment and emphasised the assessor confirmed overall hearing loss was not ‘primarily due’ to the referred injury. The respondent submitted it was not possible nor logical to conclude (applying the commonsense test) that employment injury materially contributed to the need for hearing aids, as given the level of impairment, hearing aids would have no doubt been required in any event as the balance of the hearing loss (14.7%) would more likely than not necessitated the need for hearing aids. It sought an Award. The applicant opposed this maintaining the applicant had discharged her onus in demonstrating that her employment injury ‘materially contributed’ to the need for treatment.
Both counsel ably made submissions with regards to ‘onus’, the test of ‘reasonably necessary’ and ‘causation’, which will be discussed further below.

APPLICATION OF THE LAW, FINDINGS AND REASONS

Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
Relevant legal principles upon which the evidence and the determination of the claim must be approached and which were at the heart of the submissions now follow.
The first such principle is, of course, the applicant bears the onus of establishing her case on the balance of probabilities, this meaning that I must be satisfied to a sense of actual persuasion that the particular treatment claimed is more probably than not, reasonably necessary and that such reasonable necessity more probably than not results from the injury as claimed: see, for example, Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51. This does not mean that I must be satisfied to a degree of scientific or medical certainty but, on the other hand, it will not be sufficient if I consider it merely possible that the relevant treatment is required and that the need for it results from the injury.
The second relevant principle relates to what medical treatment will be “reasonably necessary” within the meaning of s 60 of the 1987 Act such being articulated by Burke CCJ in Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233 39. More recently, those principles have been discussed and explained by Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). In essence, Roche DP found the fundamental question as posed by Burke CCJ, namely “is it better that the worker have the treatment or not?” (in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment) remains apposite, but care should be taken not to stray from the words of the statute and that other matters relevant to the consideration of whether treatment is reasonably necessary include, but are not necessarily limited to, the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective. Whether treatment is reasonably necessary is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations.
The third relevant principle relates to the test of causation connoted by the expression “results of” as it appears in s 60. It is now well established that this is a question of fact involving a commonsense evaluation of the causal chain that the treatment is reasonably necessary “as a result of the injury”: see Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452 (Kooragang). What the worker must establish is that “the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need”: per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman). Relevant to the present case and as submitted by the applicant, Roche DP also emphasised in Schokman “…the fundamental principle that employers must take their workers as they find them” and that “…a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question.
Counsel referred me to the authority of BlueScope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48 (Sekulovski), where Deputy President Wood confirmed the relevant test is as set out in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) that in order to satisfy the test of causation connoted by the expression “results of”, that being a question of fact, it was not necessary to establish that the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and that it was sufficient to establish only that the injury “materially contributed” to that need. In so concluding, Roche DP noted that “a condition can have multiple causes”.
In my assessment of liability, I have analysed the four audiograms in evidence and note Dr Howison’s is the only audiogram that is flat in all frequencies tested, hence his conclusion that the type of loss is not of an occupational nature and the provision of hearing aids therefore unrelated to employment injury.
Audiograms of Dr Tamhane’s, Bloom Audiology[7] and Dr Niall demonstrate (albeit with some variation) evidence of sensorineural hearing loss at 3000-4000kHz in both ears. Dr Tamhane and Dr Niall confirm impairment/losses in this range are directly attributable to hazardous occupational noise exposure, notably in contrast to Dr Howison’s conclusion.
[7] Folio 30 of the ARD.
Returning to the principles summarised in paragraphs 25-28 above, it is clear that the test is not the ratio between noise induced hearing loss and the overall hearing loss. However, the applicant needs to establish that that the injury “materially contributed” to the need for the treatment based in the “common sense test of causation” in accordance with Kooragang, such that it was reasonably necessary as a result of the injury.
Having reconciled the audiograms and the applicant’s statement, I find that the injury did materially contribute to the need for the provision of digital hearing aids when applying the commonsense test of causation. This is because:
(a)    I have noted the “normal” pre-employment audiogram;
(b)    there has been no other noise exposure apart from work with the respondent;
(c)    the medical opinion of Dr Tamhane and Dr Niall confirm noise exposure in the workplace has contributed to loss at the higher frequencies 3000-4000khz and there was no other explanation for the losses in these bands;
(d)    Dr Tamhane has reported that the need for hearing aids is as a result of occupational noise exposure, particularly that found in the higher frequencies and there are no other medical opinions to refute that opinion, and
(e)    the applicant’s history of exposure to noise contained in her statement.
I was not assisted by the reports of Dr Niall or Dr Howison who concluded hearing aids were not required due to any workplace injury presumably on the basis that there was a high non occupational hearing loss component. This is not an unreasonable conclusion from a medical lens but is inconsistent with the legal principles and authorities. I am not critical of the specialists as their field of expertise is medicine and not law.
In the circumstances, I find the applicant has discharged the onus of establishing work injury ‘materially contributed’ to the need for hearing aids when applying the ‘commonsense test’. The test is not “substantial” or “main” contribution, which seem to suggest a requirement of a predominant cause for the need for treatment, but rather is limited to a “material” contribution which I understand to be but one cause or a component in the need for treatment. (According to Murphy, the work injury does not need to be the only or even a substantial cause of the need for the treatment before the cost is recoverable. So the fact that the actual work related hearing loss is minimal is not fatal to the applicant’s claim.)
I have not disregarded the respondent’s cogent submissions, as summarised in paragraph 21 of these reasons, although have concluded that the factors of the normal pre-employment audiogram; the confirmation of work-related noise contribution to the overall hearing loss (particularly in the high tones by three audiograms) and the applicant’s statement as regards noise exposure do overall play a ‘material contribution’ to the need for hearing aids when applying the commonsense test thereby satisfying the legal principles and authorities discussed above.
Finally, Dr Tamhane is the only specialist who considered the need for hearing aids with reference to any occupational exposure to noise, albeit I agree with the respondent his opinion was formed on the incorrect premise that all of the loss was due to workplace noise exposure. This is not fatal in this case, as Dr Niall has confirmed that there is an element of loss due to workplace exposure, in the higher frequencies that is occupationally related, but clearly there is a disagreement as to the extent.
The evidence demonstrates a medical consensus amongst all the specialists that hearing aids are the only effective, appropriate and accepted treatment to cure the hearing loss, given the absence of any alternatives. The evidence suggests the applicant’s quality of life will be improved and there is really no other treatment available. This satisfies the factors discussed in Rose and Diab and paragraph 26 above.

SUMMARY

For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 336

25 June 2024