Jennison v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jennison v Secretary, Department of Education [2024] NSWPIC 330
APPLICANT:	Georgina Elizabeth Jennison
RESPONDENT:	Secretary, Department of Education
MEMBER:	John Turner
DATE OF DECISION:	24 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 17 and 60; alleged hearing loss due to noise exposure; claim for hearing aids pursuant to section 60; dispute as to noisy employer and that hearing aids are reasonably necessary treat as the result of an injury; Blaney Shire Council v Lobley, McGowan v Secretary, Department of Education and Communities, Dawson and others trading as The Real Crane Syndicate v Dawson, Murphy v Allity Management Services Pty Ltd cited; Held – that the applicant has sustained injury in the form of noise induced hearing loss; that the applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due for the purposes of section 17(1)(a)(ii); that the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of injury, noise induced hearing loss; the injury has materially contributed to the need for hearing aids; the respondent pursuant to section 60 to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has sustained injury in the form of noise induced hearing loss. 2. That the applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due for the purposes of s 17(1)(a)(ii) of the Workers Compensation Act 1987. 3. That the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of injury, noise induced hearing loss. The injury has materially contributed to the need for hearing aids. The Commission orders: 4. The respondent pursuant to s 60 of the Workers Compensation Act 1987 to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.

STATEMENT OF REASONS

BACKGROUND

Georgina Jennison, the applicant, was employed by the respondent as a high school teacher by the Secretary, Department of Education, the respondent. The applicant commenced her career as a high school teacher in 1974, retiring in about 2015.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that she sustained injury on the deemed date of 26 January 2015. The applicant alleges that she sustained injury due to exposure to loud industrial noise over a period of time in the workplace.
The claim for compensation in these proceedings is confined to the costs of the provision and fitting of bilateral hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    the respondent disputes that the alleged injury arose out of employment or was received in the course of employment as required by s 4 of the 1987 Act;
(b)    the respondent disputes that employment was a substantial contributing factor to the alleged injury as required by s 9A of the 1987 Act;
(c)    the respondent disputes that employment was the main contributing factor to the contraction of a disease, or aggravation, acceleration, exacerbation or deterioration of a disease injury as required by section 4(b) of the 1987 Act;
(d)    the respondent disputes it was a noisy employer as required by s 17 of the 1987 Act, and
(e)    the respondent does not agree that the applicant is entitled to medical or related treatment for the alleged injury because the medical or related treatment is not reasonably necessary as a result of an injury as required be ss 59 and 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
20 May 2024. Mr Bruce McManamey, counsel, instructed by Ms Gabriela Faura, solicitor, appeared for the applicant, who was present. Mr Daniel Stiles, counsel, appeared for the respondent, instructed by Ms Jaclyn Ferry, solicitor. The proceedings were conducted via MS TEAMS. 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 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Attachments to the respondent’s Application to Admit Late Documents (AALD) dated 14 May 2024.
The applicant did not object to the respondent’s AALD and as the attached documents are potentially relevant to the issues in dispute the documents have been admitted into evidence.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s statement evidence

There are two statements by the applicant in evidence. The first statement was made on
26 September 2023. The second statement would seem to have been made on
19 March 2024. Whilst the second statement is dated 19 March 2023, this date is clearly incorrect, as the applicant refers to her statement of 26 September 2023 in the second statement.
It is the applicant’s evidence in her statement made on 26 September 2023 at [6] that the classroom noise was not continuous, however there were times when it was not possible for her to address the students without raising her voice. That she was exposed to the noise of the school bell which would ring every 40 minutes for a few seconds and the noise of speakers and announcements on sports day once a week. She would have to raise her voice or shout to communicate when the speaker was in use.
It is the applicant’s evidence that for about two years from about 2005 to about 2006 parts of the school were undergoing renovations. During the renovations she was exposed to construction site noise including jackhammers and there were times when the jackhammer was being used outside her classroom, and she was not able to communicate at all.
It is the applicant’s evidence that she worked five days per week, nine hours per day. That the amount of noise that she was exposed to each day varied depending on what task she was undertaking and could range from anywhere between two to five hours per day. That when exposed to noise, she would have to raise her voice and sometimes shout to communicate with students and co-workers standing about 1m away.[1]
[1] ARD p 2.
It is also the applicant’s evidence at [7] that she has suffered with hearing problems for over 10 years and that her hearing has slowly gotten worse over the years.
It is the applicant’s evidence at [11] that she privately purchased hearing aids in about 2014 as she thought that they would be of assistance however, she found them to be too loud and difficult to use.
It is the applicant’s evidence in her second statement of 19 March at [3] that a school sports carnival was held twice a year and on multiple occasions she was appointed as a recorder. Being a recorder involved the applicant keeping track of the place winners in each event. The recording table was located directly under the speaker. The noise from the speaker was constant throughout the day and very loud as sports events were announced and students were given instructions. It is the applicant’s evidence that she would have to raise her voice to communicate with someone standing or sitting within one metre of her. On these days when she worked as a recorder, she rarely had a break from the noise.
It is also the applicant’s evidence at [4] that in respect to the weekly sports day which ran for three periods she was sometimes allocated ice skating which exposed her to constant speaker activity circling the entire rink whilst at the venue. They would travel to the venue by bus, and the bus was extremely noisy with very excited students shouting and speaking loudly to each other. Some terms she was allocated tennis, with no noise involved other than the bus commute. Summer sport was usually swimming at the local pool, again with noisy bus travel and constant speaker activity across the entire area.
It is the applicant’s evidence at [5] that she also supervised the school “disco nights” which occurred three times per year and went for about four hours. The noise levels were intense. During these events the applicant would have to shout to communicate with someone standing within a metre of her.
It is the applicant’s evidence at [6] that the school underwent significant construction work and renovations during her employment. At [7] that there were construction workers with heavy machinery working all around the school for about a 12 month period. It is the applicant’s evidence at [8] that the classroom in which she taught was located directly behind where demolition and construction work was occurring with only a gyprock or brick wall separating her classroom from the blocks where the construction and demolition work was being performed.
It is the applicant’s evidence at [9] that during this period there was extremely loud noise for between two to five hours per day from the construction work. They used machinery such as drills, hammers, nail guns, jackhammers, earth moving machinery. There were times when the jackhammer was outside of the classroom and the applicant was not able to communicate at all due to the noise. Heavy earth moving machinery was used to remove concrete debris at which time the noise was so loud that the applicant had to raise her voice and sometimes shout to communicate with students and co-workers standing about a metre away.
It is the applicant’s evidence at [10] that she complained on many occasions to the Head Teacher, Sandra Mary Wilson, and other staff about the noise and how hard it was to teach under these conditions. Students also complained. However, there were no available spare classrooms.

Statutory declaration of Ms Sandra Wilson

It is the evidence of Ms Sandra Wilson in a statutory declaration executed on 15 June 2023 that the school underwent significant construction and renovation works. That this work involved heavy machinery and constant loud building noise across the whole of the school and was continuous for over 12 months.
It is Ms Wilson’s evidence that the applicant’s classroom was separated from one of the construction areas by a gyprock wall. That the applicant was subjected to constant construction noise in respect to which the applicant frequently complained. Further construction work took place outside the back of the applicant’s classroom involving jackhammering and other construction.
It is the evidence of Ms Wilson that for a period of three years the applicant endured constant loud demolition and construction noise.

Dr Paul Fagan

Dr Paul Fagan, ear nose and throat surgeon, provided a forensic report to the applicant dated 26 August 2022[2] in which the doctor noted that the applicant reported a gradual onset of auditory symptoms over 10 years. Dr Fagan records that the applicant was exposed to noise from students, loud music, speakers, echoing environment, assemblies in the halls, school events, sports carnivals and general worksite related noise.
[2] ARD pp 28-33.
Dr Fagan recorded that the applicant described having to generally raise her voice in order to communicate at a distance of 1m which in the opinion of Dr Fagan is indicative of ambient noise levels in excess of 90dB. Dr Fagan observed that more than two hours of such exposure would be hazardous to a person’s hearing. The doctor noted that the applicant worked five days per week, nine hours per day and was exposed to noise for 5-6 hours in a day.[3]
[3] ARD p 30.
In the opinion of Dr Fagan, the applicant’s employment with the respondent had the tendencies, incidents and characteristics to cause occupational noise induced hearing loss. Dr Fagan was also of the opinion that the applicant’s employment history, physical examination and the configuration of her audiogram supported the diagnosis of industrial hearing loss. Dr Fagan noted 41 years of significant noise exposure. Dr Fagan was of the opinion that the frequencies from 2000Hz to 4000Hz had been affected as a result of noise exposure.[4] Dr Fagan assessed a compensable binaural hearing loss of 5.7% after deduction for presbycusis.[5]
[4] ARD p 30.
[5] ARD p 31.
Dr Fagan recommend the hearing aids and was of the opinion that the noise induced hearing loss is a material contributor to the need for the hearing aids.
Dr Fagan provided a supplementary forensic report to the applicant dated
20 November 2023 having reviewed further documents including the applicant’s statement made on 26 September 2023, the statutory declaration of Ms Sandra Wilson and notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 3 March 2023. Dr Fagan specifically noted that he had not been provided with a copy of the report of Dr Raj but had read excerpts from Dr Raj’s report.
In the opinion of Dr Fagan, it seemed that Dr Raj was unaware of the significant noise exposure experienced by the applicant during the extended construction period in the vicinity of her classrooms from 2005 to 2006. Dr Fagan noted that the applicant detailed difficulties teaching during this period, evidencing in the opinion of Dr Fagan ambient noise levels exceeding 90dB. In the opinion of Dr Fagan more than two hours of exposure to 90dB is causative of “N.I.H.L1”. Dr Fagan noted that the applicant described being exposed to such noise for up to five hours daily during this period. Dr Fagan noted that the applicant’s description of noise exposure was supported by her work colleague, Sandra Wilson.
Dr Fagan remained of the opinion that the applicant’s high-frequency loss is work-related.

Dr Thandavan Baratha Raj

Dr Thandavan Baratha Raj, ear, nose and throat surgeon, provided a forensic report to the respondent dated 25 January 2023. Dr Raj records a history that the applicant first became aware of her hearing loss about 14 years prior. She could not hear adequately in certain situations and had a hearing test following which she was given hearing aids. Her hearing has since deteriorated further.
In the opinion of Dr Raj, the applicant’s noise exposure was very difficult to assess. The doctor divided the noise exposure into three categories:
(a)    Classroom noise - general classroom noise including the children: The noise was not continuous. The applicant reported that most of the time it was possible to address the children without raising her voice. There was intermittent noise from furniture moving on the concrete floor. There was noise from the bell every forty minutes lasting seconds. In the opinion of Dr Raj, the noise in this category was intermittent and not of sufficient duration or decibel level to cause noise injury.
(b)    Carnivals, concerts and sports events: Noise from speakers and announcements on sports day. Dr Raj observed that the speaker noise could be over 100 dB but was intermittent only occurred three times a year. Dr Raj observed that the speaker noise was not continuous over two hours to cause noise injury.
(c)    Construction noise: For about two years whilst renovations were occurring at the school the applicant was exposed to jackhammers and other construction noise throughout her work hours. Critically, in the opinion of Dr Raj that noise exposure had the tendencies to cause noise injury.
In the opinion of Dr Raj, giving the applicant the “benefit of the doubt”, the construction noise exposure would have caused a quantum of noise injury, “which is negligible or not measurable”.[6]
[6] Reply p 17.
In the opinion of Dr Raj, the exposure to noise in the applicant’s employment with the respondent did not contribute to any portion of the hearing loss and therefore the respondent was not the last noisy employer.
In the opinion of Dr Raj, the applicant’s audiogram showed moderate to severe losses in mid and high frequencies. In particular the severe losses at 6000-8000Hz strongly suggested to Dr Raj “other pathology”. In Dr Raj’s opinion the noise exposure was also insufficient to affect the mid-frequencies and even 3000Hz. Dr Raj stated that the loss of 45-50dB does not occur in the circumstances of the applicant’s noise exposure.
In the opinion of Dr Raj, the audiogram does not support the presence of industrial deafness, nor does the noise history.
Dr Raj disagreed with the noise assessment of Dr Fagan. Dr Raj observed that Dr Fagan has not given any details regarding the noise exposure, such as the duration of echoey noise, duration of noise from speakers and how often the school events and carnivals occurred and the noise level. Particularly, he had not explained how he assessed the echoey or carnival noise to be over 90dB and whether that two hours of exposure occurred daily or occasionally and his general statement that the classroom was noisy is, in the opinion of Dr Raj, a less than adequate description. In the opinion of Dr Raj, the assessment of Dr Fagan is not made on firm ground due to inadequate noise history.
In the opinion of Dr Raj hearing aids are not reasonably necessary for the non-existent injury of industrial deafness.
Dr Raj provided a further forensic report to the respondent on 29 November 2023 in which the doctor noted that he had read the applicant’s second statement. The doctor observed that he had not previously excluded the possibility of industrial deafness, except that hearing loss after two years of noise exposure is not measurable or is negligible. The doctor referred to his previous observations in respect to the audiogram and that the losses in the higher frequencies are much more than he expected after two years of exposure to construction noise. In the opinion of Dr Raj, the noise exposure was insufficient to affect the lower frequency, even at 3000Hz. Furthermore, the severe losses at 6000-8000Hz indicated to
Dr Raj a strong possibility of other pathology, as did the lower frequencies.
Thus, in the opinion of Dr Raj, on the balance of probabilities, the characteristics of the audiogram clearly show that there is more evidence of “other pathology” than noise injury despite calculating 1.2% BHI due to occupational hearing loss after deduction for presbycusis.
In the opinion of Dr Raj if it were assumed that industrial deafness was present, then only the loss at 4000Hz would be assessed. On that basis Dr Raj calculated an occupational hearing loss of 1.2% BHI after correction for presbycusis.
Based ‘on the audiogram, expected noise injury losses, and the calculation’ Dr Raj is of the opinion that it is more likely that the applicant’s hearing loss is due to other pathology rather than noise injury. In Dr Raj’s opinion less than 10% of the applicant’s hearing loss is due to noise injury.[7]
[7] Reply p 22.
In the opinion of Dr Raj, the new material did not significantly alter the information already available. Thus, Dr Raj did not change his opinion as to whether the applicant’s employment with the respondent contributed to her hearing loss.
Dr Raj noted that he did not disagree with Dr Fagan that the noise exposure, as described, could cause industrial deafness. Dr Raj did however disagree with the assessment of
Dr Fagan. In Dr Raj’s view Dr Fagan has not explained the inconsistency of the audiogram findings with industrial deafness. In Dr Raj’s opinion there is more evidence to suggest that the applicant has not sustained significant noise injury and that her hearing loss is due to other pathology. Dr Raj observed that not all workers who are exposed to noise sustain noise injury. Only 30% do. Thus, the presence of 1.2% BHI attributed to noise injury is more likely due to other pathology.

Therefore, in the opinion of Dr Raj the requirement for hearing aids is more due to pathologies other than noise injury and hearing aids are not reasonably necessary for non-existent noise injuries.
Dr Raj in a further forensic report dated 14 May 2024 observed that the two statements of the applicant as well as the statutory declaration of Sandra Wilson all contain similar noise descriptions.
In the doctor’s opinion the question is whether each noise could produce noise injury individually and, cumulatively, whether the noise produced substantial noise injury.
In the opinion of Dr Raj there are no actual noise levels described. For example, noise in an open field during sports and its relationship to the applicant’s noise exposure or when there were concerts, the relationship between her position in the concert hall and the noise. What was the noise level, and in this case, would an intermittent exposure to noise cause a measurable noise injury? More importantly for Dr Raj than the noise exposure, the audiogram does not, in the doctor’s opinion, support the presence of noise injury even though the applicant might have been exposed to intermittent noise. In the opinion of Dr Raj, the audiogram shows significant losses at 2000-4000Hz, which cannot be explained by the applicant’s intermittent noise exposure. In Dr Raj’s opinion, it is for this reason, that in all probability, the applicant has not suffered a noise injury and that her hearing loss is due to other pathology.
In the opinion of Dr Raj in any workplace, tendencies, characteristics or incidents could cause noise-induced hearing loss. Whether a noise injury does occur depends on the circumstances, such as cochlear sensitivity, duration of exposure, and noise levels. Finally, the noise injury has to be confirmed by an audiogram consistent with the noise injury. Based on the above, it is the opinion of Dr Raj that the applicant’s employment with the respondent did not cause any noisy injury and, by inference, did not have the tendencies, incidences and characteristics to be capable of causing noise injury.

FINDINGS AND REASONS

Section 17

It was correctly submitted on behalf of the applicant that claims in respect to hearing loss caused by a gradual process are completely governed by s 17 of the 1987 Act and that ss 4 and 9A of the 1987 Act have no application.
Section 17 of the 1987 Act states:
“(1)If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a)  for the purposes of this Act, the injury shall be deemed to have happened—
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom,
(c)  compensation is payable by—
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii)where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e)in paragraph (d), the relevant period means—
(i)  where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)—in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii)where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury—in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii)where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury—in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
(f) where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2)     Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3)     Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
Section 17 of the 1987 Act applies if the “injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process…” Gradual hearing loss caused by exposure to occupational noise, often referred to as “boilermakers deafness” or “industrial deafness”, as deemed by s 17(2) to be hearing loss caused by a gradual process and therefore falls within the ambit of s 17.
Section 17(1)(a) deems the injury to have happened:
“(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,”
[Emphasis added]
Section 17 does not require true causation. The applicant does not have to prove that she actually suffered injury, hearing loss caused by a gradual process, arising out of or in the course of her employment with the respondent. The applicant only has to prove that the ‘tendencies, incidents or characteristics’ of her employment with the respondent “could give rise” to the injury. As Cole JA said in Blaney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley) at [64]:
“…in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.”
Similarly, Roche DP in McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51 (McGowan) at [57]-[58] stated:
“Section 17 is not concerned with true causation of the relevant hearing loss, but ‘proceeds on a series of fictions or assumptions’ (Civitarese per Beazley JA (as her Honour then was) (Handley and Sheller JJA agreeing) at 160G). A claimant does not have to establish that his or her employment with the named respondent brought about or contributed to the disease (the hearing loss) (Civitarese at 160G). It is concerned to determine the identity of the employer who employed the worker in employment to the nature of which the injury of boilermaker’s deafness was due. That is, the employer who employed the worker in employment whose tendencies, incidents and characteristics could give rise to a risk of industrial deafness.
In the present case, the Arbitrator determined that the respondent was that employer and that finding has not been challenged. As Mr McGowan was employed by the respondent at the time he gave notice of the injury, the injury is deemed to have happened at that time (s 17(1)(i)). In other words, the injury is taken to have happened ‘as it were, in one blow’ (Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 at 256–257).”
Therefore, on the condition that the applicant’s injury is a loss of hearing which is of such a nature as to be caused by a gradual process, I accept the applicant’s submission that she does not need to prove actual causation, does not need to prove injury in accordance with s 4 of the 1987 Act, does not need to prove s 9A substantial contributing factor and does not need to prove main contributing factor.

Noisy employment

Did the applicant’s employment with the respondent have the ‘tendencies, incidents or characteristics’ which could give rise to hearing loss caused by a gradual process? I am of the view, for the following reasons, that the applicant’s employment with the respondent did have such ‘tendencies, incidents or characteristics’.
Using the categories adopted by Dr Raj it is the applicant’s evidence that she was exposed to the following three types of noise:
(a)    Classroom noise – which was not continuous but at times required her to raise her voice to address students. The noise included the sounding of the school bell for a few seconds every 40 minutes.
(b)    Carnivals, concerts and sports events - the noise of speakers and announcements on sports day which ran for three periods one day a week as well as noisy bus trips with excited students.
That on multiple occasions she acted as a recorder at sports carnivals which were held twice a year at which time she was exposed to constant noise from the loudspeaker. On these occasions she would have to raise her voice or shout to communicate with someone standing or sitting within a metre of her when the speaker was on.
That three times a year she supervised the school “disco nights” which lasted for about four hours. The noise levels at these events were “intense” and the applicant would have to shout to communicate with someone standing within a metre of her.
(c)    Construction noise - that for about two years from about 2005 to about 2006 she was exposed to extremely loud construction site noise including the sound of heavy machinery such as earth moving equipment, machinery such as drills, hammers, nail guns and jackhammers for between two to five hours per day. At times due to the noise, she had to raise her voice and sometimes shout to communicate with students and co-workers standing about one metre away from her and at times she was unable to communicate at all.
The applicant’s evidence as to the construction noise to which she was expose is corroborated by the evidence of Ms Sandra Wilson in her statutory declaration executed on 15 June 2023. There is no evidence that challenges the applicant’s evidence in respect to the noise that she was exposed to in the course of her employment with the respondent. I have no reason to question the applicant’s evidence. No submission has been made that the applicant’s evidence should not be accepted. I therefore accept the applicant’s evidence.
For the applicant to prove that her employment with the respondent had the ‘tendencies, incidents or characteristics’ which could give rise to hearing loss caused by a gradual process it is not sufficient for the applicant to simply state that her employment was noisy. As Roche DP said in Dawson and others trading as The Real Crane Syndicate v Dawson [2008] NSWWCCPD 35 at [44]:
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness.”
Dr Fagan at the time of writing his report of 26 August 2022 did not have the two statements of the applicant referred to previously or the statutory declaration of Ms Sandra Wilson as those documents had not as yet been brought into existence.
Dr Fagan recorded an extremely brief history and description of the applicant’s workplace noise exposure with the respondent. Dr Fagan recorded that the applicant described having to generally raise her voice in order to communicate at a distance of 1m which in the doctor’s opinion was indicative of ambient noise levels in excess of 90dB. Dr Fagan observed that more than two hours of such exposure would be hazardous to a person’s hearing. The doctor noted that the applicant worked five days per week, nine hours per day and was exposed to noise for 5-6 hours in a day.
Based on this history of noise exposure Dr Fagan formed the opinion that the applicant’s employment with the respondent had the ‘tendencies, incidents and characteristics to cause occupational noise induced hearing loss’.
I accept the respondent’s submission that very little weight should be given to the above initial opinion of Dr Fagan. As previously observed the history of noise exposure initially taken by Dr Fagan is extremely brief. Whilst Dr Fagan records that the applicant was exposed to noise from students, loud music, speakers, echoing environment, assemblies in the halls, school events, sports carnivals and general worksite related noise. He records virtually no detail as to the nature and duration of the noise exposure.
Whilst Dr Fagan records that the applicant reported having to generally raise her voice to communicate at a distance of 1m this appears to be inconsistent with the applicant’s subsequent statement evidence in respect to the periods when the renovation and construction work was not in progress. It is also not clear from the report as to how Dr Fagan came to the conclusion that the applicant was exposed to noise for 5-6 hours per day. This would also appear to be inconsistent with the applicant’s statement evidence which is generally to the effect that apart from during the period of the renovation and construction works and except for specific events the noise exposure was largely intermittent, and even during the construction and renovation works the exposure was between two to five hours per day.
Prior to producing his further report of 20 November 2023 Dr Fagan reviewed further documents including the applicant’s statement made on 26 September 2023, the statutory declaration of Ms Sandra Wilson and a notice issued pursuant to s 78 of the 1998 Act dated 3 March 2023. Dr Fagan did not have before him the applicant’s second statement of
19 March as that had yet to be created.
Having reviewed this documentation Dr Fagan noted in his opinion that the applicant described being exposed to noise exceeding 90dB during the construction and renovation works for up to five hours per day. Whilst Dr Fagan did not re-visit his opinion as to whether the applicant’s employment with the respondent had the ‘tendencies, incidents and characteristics to cause occupational noise induced hearing loss’, the doctor did confirm that he continued to be of the opinion that the applicant’s high-frequency loss is work related.
The respondent is critical of this further report of Dr Fagan in that the doctor does not have before him the full history to the extent that he does not have before him the applicant’s second statement which as previously noted did not yet exist at that time of the writing of the report. The respondent also observed that Dr Fagan did not have before him the initial report of Dr Raj of 25 January 2023 but rather only excerpts of Dr Raj’s report.
The respondent also correctly observed that Dr Fagan did not directly address in his second report the question of whether the tendencies incidents and characteristics of the applicant’s employment with the respondent was such as to give rise to a real risk of industrial deafness. In the respondent’s submission in a case where that issue is one of the main issues that is a critical deficiency. However, as noted above, whilst Dr Fagan did not directly address the question of whether the tendencies incidents and characteristics of the applicant’s employment with the respondent was such as to give rise to a real risk of industrial deafness, Dr Fagan did confirm that he continued to be of the opinion that the applicant’s high-frequency loss is work related having only been provided with a history of noise exposure with the respondent.
Turning to the forensic reports obtain by the respondent from Dr Raj.
Dr Raj at the time of the production of his initial report dated 25 January 2023 did not have before him the applicant’s statements as they did not yet exist. However, Dr Raj took a detailed history from the applicant in respect to her noise exposure with the respondent which is not inconsistent with the applicant’s subsequent statement evidence. Significantly
Dr Raj was of the opinion that the applicant’s exposure to the construction noise had the “tendencies to cause noise injury.” Whilst Dr Raj went on to state that, giving the applicant the “benefit of the doubt,” the applicant’s exposure to the construction noise “would have caused a quantum of noise injury, which is negligible or not measurable” the applicant does not have to prove actual injury with the respondent as previously discussed.
The doctor does not elaborate as to what he is giving the applicant the “benefit of the doubt”. However, it seems to me that the “benefit of the doubt” being referred to could only be in respect to two matters. Firstly, the description/history provided by the applicant of the noise to which she alleges that she was exposed and secondly as to the applicant having actually suffered a noise injury as a result of that exposure. In respect to the applicant’s evidence in respect to noise exposure I have previously accepted the applicant’s statement evidence. Whilst the history and description of the noise exposure taken by Dr Raj is briefer it is consistent with the applicant’s statement evidence. Secondly the applicant is not required to prove actual noise injury only that her employment had the ‘tendencies, incidents and characteristics’ to give rise to a real risk of such an injury.

Dr Raj provided a supplementary report dated 29 November 2023. Dr Raj had been provided with the applicant’s initial statement of 26 September 2023 in respect to which Dr Raj observed was the same as the history of noise exposure which had been reported to him at the time of his initial consultation. Dr Raj however did observe that there was a particular emphasis on the construction noise both in the applicant’s statement and in the statutory declaration of Ms Sandra Wilson which appears to have also been provided to Dr Raj. Relevantly Dr Raj confirmed that he had not in his previous report excluded the possibility of industrial deafness and he did not disagree with Dr Fagan that the noise exposure, as described, could cause industrial deafness.
Dr Raj in his third and final report of 14 May 2024 noted that he had read the applicant’s second statement. Dr Raj observed that the two statements of the applicant as well as the statutory declaration of Sandra Wilson all contain similar noise descriptions. The doctor observed that there were no actual noise levels described. Whilst it is true that there are no noise readings the applicant does however describe the noise levels in terms of her ability to communicate with someone at a distance of 1m. A description which is frequently used in this jurisdiction to describe noise exposure. The doctor goes on to question whether the applicant has sustained an actual noise injury, which is not the relevant issue for present purposes.
Dr Raj is asked whether he accepts that the applicant’s employment with the respondent had the necessary tendencies, characteristics or incidents to be capable of causing noise-induced hearing loss. The doctor responds, rather unhelpfully, that “In any workplace, tendencies, characteristics or incidents could cause noise-induced hearing loss.”
Dr Raj goes on to state that in his opinion the applicant’s employment with the respondent did not “cause any noisy injury and, by inference, did not have the tendencies, incidences and characteristics to be capable of causing noise injury.” The doctors reasoning in reaching this conclusion is flawed in my view.
Prior to making that pronouncement Dr Raj had observed that whether a noise induced injury does occur depends on the circumstances such as cochlear sensitivity, duration and noise levels. Therefore, by the doctors own account of the factors involved, noise level and duration are relevant. However, simply because you are exposed to a noisy environment that has the tendencies, incidents and characteristics to cause noise induced hearing loss that does not necessarily mean that an injury will be sustained as the period in which one is present in that environment before leaving may be insufficient or other factors such as cochlear sensitivity may reduce susceptibility to such an injury. As Dr Raj noted at page 3 of his report of 29 November 2023 not all workers who are exposed to noise sustain noise injury observing that only 30% do. The opinion is also inconsistent with the doctor’s, unhelpful observation, that any workplace, tendencies, characteristics or incidents could cause noise-induced hearing loss.
Apart from the doctor’s conclusion that the applicant’s employment with the respondent did not cause any noisy injury (in his opinion) therefore that employment did not have the necessary tendencies, incidents and characteristics Dr Raj does not alter or withdraw his opinion in respect to the actual tendencies, incidents and characteristics. The doctor does not discuss any changes to the evidence in respect to the actual nature of the noise exposure which had caused him to come to a different view as to the “tendencies, incidents and characteristics” to that which had been expressed in his previous reports.
Whilst Dr Raj’s report of 14 May 2024 causes some confusion, I am for the above reasons, of the view that the opinion of Dr Raj supports the conclusion that the applicant’s employment with the respondent had the “tendencies, incidents and characteristics” to give rise to a real risk of noise induced hearing loss by gradual process. That opinion is also supported, in my view, by Dr Fagan.

Injury

Does the applicant suffer from a loss of hearing which is of such a nature as to be caused by a gradual process?
Dr Fagan in his report of 26 August 2022 concluded that in his opinion the applicant’s employment history, physical examination and the configuration of her audiogram supports the diagnosis of industrial hearing loss. Dr Fagan was of the opinion that the frequencies from 2000Hz to 4000Hz had been affected as a result of noise exposure. Dr Fagan assessed after correction for presbycusis an occupational 5.7% binaural hearing loss (BHL) relying only on the 2000Hz to 4000Hz frequencies.
As previously discussed, Dr Raj in his report of 25 January 2023 expressed the opinion, giving the applicant the benefit of the doubt, that the construction noise would have caused a quantum of noise injury, which is negligible or not measurable.
Inconsistently in the same report Dr Raj expressed the opinion that the applicant’s audiogram did not support the presence of industrial deafness, and nor did the noise history. In coming to this opinion Dr Raj observed that the audiogram showed moderate to server losses in the mid and high frequencies. In particular in the doctor’s opinion the severe losses at 6000-8000Hz strongly suggested other pathology. The doctor did not suggest what this other pathology may be or that there was indication of any other pathology on examination. In fact on examination the doctor noted that anterior rhinoscopy and otoscopy were normal as was the rest of the examination.
As previously noted, Dr Fagan only used the frequencies from 2000Hz to 4000Hz to assess the noise induced hearing loss and therefore any impairment caused by other pathology in the 6000-8000Hz range was not taken into account by Dr Fagan when assessing the hearing loss.
That of course does not mean that any other condition may not have affected the applicant’s hearing at the 2000Hz to 4000Hz rate. In the opinion of Dr Raj, the applicant’s noise exposure was insufficient to affect the mid-frequencies at even 3000Hz. Dr Raj does not provide his reasoning for coming to that conclusion. Dr Raj does however on page 4 of his report advise that he disagrees with the noise assessment of Dr Fagan. Dr Raj was critical of the opinion of Dr Fagan stating that Dr Fagan had not given details regarding the noise exposure such as the duration of echoey noise, duration of speakers (noise) and how often the school events and carnivals occur and the noise level. Significantly Dr Raj noted that the history which the applicant had provided to him was of all the noise being intermittent and in the doctor’s opinion probably insufficient.
Dr Raj in criticizing the opinion of Dr Fagan did not refer to what is the most significant noise exposure which is the construction and renovation noise. It needs to be remembered that it was the construction and renovation noise which Dr Raj conceded had the tendencies to cause noise injury.
Dr Raj in his report of 25 January 2023 did not record the duration of the applicant’s exposure to the construction noise however Dr Raj in his supplementary report of
29 November 2023 noted that he had been provided with a copy of the applicant’s first statement made 26 September 2023 and observed that “All information in the statement has remained the same as the history of noise exposure, as explained to me in the initial consultation” noting that there was a particular emphasis on construction noise.
In the applicant’s statement of 26 September 2023 the applicant states at [6] that:
“The noise that she was exposed to each day varied depending on what task I was doing at work and can range from 2 to 5 hours per day. When I was exposed to noise, I would have to raise my voice and sometimes shout to communicate with students and co-workers standing about a meter away from me.”
Dr Raj appears to indicate at [4] of his report of 29 November 2023 that hearing loss after two years of noise exposure is not measurable or is negligible. The doctor does not state the reason for that opinion and more significantly whether that is affected by the degree of noise to which the worker is exposed and if so how and whether this conclusion had been reached on the assumption that the exposure was only intermittent in nature contrary to the applicant’s evidence of exposure of between two to five hours per day.
Dr Raj concluded that if it was assumed that industrial deafness was present then in his opinion only the loss at 4000Hz would be assessed which Dr Raj assessed at 1.8% BHL out of a total loss of 14% BHL before correction for presbycusis.
In Dr Raj’s opinion Dr Fagan had not explained the inconsistency of the audiogram findings with industrial deafness. In the opinion of Dr Raj there was more evidence to suggest that the hearing loss was due to other pathology. The inconsistency which Dr Raj appears to be referring to is Dr Raj’s view that intermittent noise exposure would not have caused the impairment of the mid frequences however it is the applicant’s evidence, which is not challenged, that she was exposed constantly to extremely loud noise for between two to five hours per day, a history which Dr Fagan acknowledged in his report of 20 November 2023. The impairment at the 6000-8000Hz range appears to be a potential indicator of other pathology rather than an inconsistency.
Dr Raj does not explain why the “other” pathology would take precedents over any noise induced loss or why the existence of other pathology would also mean that noise induced hearing loss was not present. In this context Dr Raj also does not appear to have considered when this other pathology potentially started impacting the applicant’s hearing with the applicant reporting continuing deterioration having retired in 2015.
Dr Raj in his third and final report dated 14 May 2024 noted that he had been provided with the applicant’s second statement as well as the statutory declaration of Sandra Wilson. In her second statement at [9] when referring to the period in which the construction and renovations works were being performed it is the applicant’s unchallenged evidence that there was extremely loud noise from the construction workers running constantly for two to five hours per day. It is the applicant’s evidence that the noise was so loud that she had to raise her voice and sometimes shout to communicate with students and co-workers standing about a metre away from her. Despite this history Dr Raj continued to refer to the noise as being intermittent.
Dr Raj did concede in his report of 29 November 2023 that if it was assumed that industrial deafness was present then only the loss at 4000Hz would be assessed which the doctor calculated at 1.2% BHL after deduction for presbycusis.
For the above reasons I prefer the opinion of Dr Fagan to that of Dr Raj as to the diagnoses of noise induced hearing loss. In particular Dr Fagan has acknowledged the applicant’s unchallenged evidence that she was exposed constantly to extremely loud noise for between two to five hours per day during the construction and renovation works. Dr Raj in my view also fails to explain, assuming that there is other pathology, why the presence of other pathology would be inconsistent with noise induced hearing loss.
I therefore find that the applicant has suffered loss of hearing which is of such a nature as to be caused by a gradual process.

Hearing aids

The applicant claims pursuant to s 60 of the 1987 Act the costs of the provision and fitting of binaural hearing aids.
For the following reasons I am of the opinion that in accordance with s 60 of the 1987 Act binaural hearing aids is reasonably necessary treatment as a result of the injury.
It is the applicant’s evidence in her statement made on 26 September 2023 at [8] that she has difficulty understanding and hearing speech on the television and telephone, that she has trouble hearing the phone ring, that she has difficulty understanding conversations when people are talking at the same time or when there is background noise. It is the applicant’s evidence at [9] that she needs to turn the volume up on the TV, she feels stressed and worried about communicating, that she feels embarrassed about having to ask people to repeat themselves and that sometimes people think that she is ignoring them.
It is the applicant’s evidence that she trialled hearing aids between 12 April 2023 and
16 May 2023 and found that she was able to understand speech on the television better and was able to reduce the volume of the television, that she found that she no longer had to ask people to repeat themselves and was able to enjoy social outings more, that she could better hear speech on the telephone, that she could hear people better in background noise. It is the applicant’s evidence that the hearing aids made a “massive difference” to her life.
In the opinion of Dr Fagan hearing aids are reasonably necessary as a result of the injury.
In the opinion of Dr Raj hearing aids are not reasonably necessary as in the doctor’s opinion the applicant has not sustained a noise injury.
The evidence, in particular the applicant’s evidence in respect to the successful trial of the hearing aids, supports that the applicant would benefit from hearing aids. As previously discussed, I prefer the opinion of Dr Fagan to that of Dr Raj in respect to the applicant suffering from noise induced hearing loss and therefore prefer the opinion of Dr Fagan to
Dr Raj in respect to the hearing aids being reasonably necessary as a result of the injury.
Dr Fagan assessed an occupational hearing impairment 5.7% BHL after deduction for presbycusis. Dr Raj assessed a total hearing loss of 14% whole person impairment prior to deduction for presbycusis. On Dr Fagan’s assessment the occupational hearing impairment represents in excess of 1/3^rd of the applicant’s hearing loss.
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] ….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]; [2009] HCA 28; 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).”
Bearing in mind Dr Fagan’s assessment of occupational hearing impairment I am of the opinion that the work injury materially contributes to the need for the hearing aids.
Hearing aids are accepted treatment, no alternative treatment has been identified and there is no issue in respect to the costs being excessive with the costs payable at workers compensation being subject to legislative control.

[2024] NSWPIC 330

24 June 2024