Jensen and Comcare - [2000] AATA 336

DECISION AND REASONS FOR DECISION [2000] AATA 336

ADMINISTRATIVE APPEALS TRIBUNAL )

) V1998/0725

VETERANS' APPEALS DIVISION )

Re DOUGLAS JENSEN
Applicant

And COMCARE
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date1 May 2000
PlaceMelbourne

Decision The decision under review is set aside and in substitution it is decided: 1. The applicant has suffered a sequela to the injuries of hearing loss and tinnitus namely reactive depression. 2. The respondent is liable for reasonable medical like expenses arising out of the applicant's treatment for this injury. 3. The respondent is liable to pay the applicants costs of this application.

.....Sgd. Mr J. Handley …..
Senior Member

Compensation: Traumatic hearing loss with resulting vertigo and tinnitus; whether any psychological sequela to tinnitus; decision set aside.

REASONS FOR DECISION

1 May 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision made by the respondent on 16 June 1998 which affirmed a primary decision made on 6 March 1998 to refuse a claim for compensation for psychological illness as a sequel to an accepted condition of hearing loss and tinnitus.
The hearing of this application commenced in Hamilton (where the applicant resides) and concluded in Melbourne. The hearing occupied four sitting days. A number of witnesses gave evidence and a number of medical reports were filed and received into evidence. The evidence of the witnesses and the contents of the medical reports will be referred to later in this decision.
Mr Jewell appeared on behalf of Mr Jensen and Mr McInnis appeared on behalf of the respondent.
douglas victor jensen
Mr Jensen is the applicant in these proceedings and was born on 16 February 1965. He is presently 35 years of age. On 23 May 1987 when he was a member of the Army Reserve he suffered injury to his right ear and consequent tinnitus. He has subsequently made a claim for compensation by reason of these injuries and has received a lump sum payment of compensation under the Compensation (Commonwealth Government Employees) Act 1971. This application is concerned only with the psychological sequela to these injuries.
Mr Jensen said he was serving at the Puckapunyal Anti Armour Range and was assisting in the firing of a Gustav Anti-Tank Weapon. He said he had been wearing earplugs and the right side of his head was positioned close to the weapon. Immediately prior to one of the missiles being discharged the earplug in his right ear became dislodged and without protection his right ear was exposed to the blasting sound of the weapon. He said he felt nauseous, noticed a ringing sensation in his ear, later noticed a discharge of blood from the ear and was unable to maintain balance.
On 24 May 1987, being the day after this incident, Mr Jensen said he attended a parade and completed clean up operations prior to departing Puckapunyal and returning to Hamilton. He said he consulted a nurse on the Base who suggested that he seek medical treatment. He eventually saw Dr Marshall on 25 May 1987 who referred him to Mr Hill an ear nose and throat specialist in Ballarat.
On 1 June 1987 Mr Jensen participated in a night parade for about three hours and on 20 June 1987 he enlisted for a further three years in the Army Reserve. He said he re-enlisted because of the "brotherhood of the army, it is just something you go on and do because you are there for your mates". At that time he said his tinnitus was "absolutely severe" and although he had been told by Dr Hill that his tinnitus would be permanent he said he "found it very hard to accept".
At about this time Mr Jensen said he purchased a semi-automatic pistol "with the intention of actually killing myself". He said "given these circumstances that the ringing was going to be ongoing and I felt at the time – I was in perfect health before anything – this occurred and I just – I felt that if I couldn't be of any use to anybody else I may as well not be around". At about this time Mr Jensen said he was having difficulty sleeping because of the tinnitus, which was fluctuating.
In October 1987 the applicant attended a training course at Puckapunyal, which he described as an "assault pioneer course" which he said he passed "with flying colours". Mr Jensen said that he "did one of the best cutting charges that one of the lieutenant's had ever seen" and said he achieved this recognition because he was repeating the course and "actually things go better second time around". In March 1988 he attended a training camp in New Zealand yet he continued to have difficulty with balance and he noticed that the ringing sensation in his ear was "increasing" and the pitch had changed.
On 26 July 1988 Mr Jensen suffered an accident at his parent's farm whilst walking around a paddock one evening with a loaded 22 calibre rifle hunting foxes. Mr Jensen said he tripped and although he attempted to throw the rifle away it discharged and a bullet passed from a point of entry in his upper left thigh and discharged adjacent to his left femur. He was taken by his father to Hamilton Base Hospital where he was admitted and remained an in-patient for three days. Subsequent to discharge Mr Jensen has said that this incident and the injuries have not "troubled" him.
In August 1988 Mr Jensen resigned from the Army Reserve because he "couldn't go on". Despite him being a soldier and having a sense of having to "keep going" he said, (it) "got to the stage that that was it. I just had to finish my career".
Shortly after resigning from the Army Mr Jensen commenced work with Haldor Equipment in Hamilton. His job was to operate a machine to crush wool into bales. He said he wore earmuffs, yet he continued to suffer from tinnitus and by September 1988 he finished work "because of the noise and by reason of the wool season ending".
Thereafter Mr Jensen made a claim for compensation with respect to his hearing loss and tinnitus and was referred to Dr McMahon for assessment. Eventually Mr Jensen was referred to Mr Couzins in Melbourne for management of his hearing loss and tinnitus who in turn referred him to the Tinnitus Society in Prahran. The symptoms of varying frequency of noise in his ears as well as vertigo continued.
In August 1990 having obtained a certification from the Victorian Department of Labour and Industry, Mr Jensen obtained self-employment removing red gum stumps from a farm near Coleraine using explosives. He worked with two-minute fuses and wore earmuffs and after three days of work he said he felt "perfect". Mr Jensen said he was looking forward to more work but did not obtain it. He said there was no other available work as a shot firer. He said some work is available blasting in quarries or in mines but he was not prepared to undertake it because it required further qualification and because it largely involved tunnelling, it exposed him to a risk that he was not prepared to take.
In 1991 the firm Haldor Equipment was acquired by his brother and Mr Jensen was able to undertake some work with that firm. Thereafter, Mr Jensen worked on a casual but permanent basis, undertaking some office work, principally being responsible for personnel records and making up salaries. He said the work environment was noisy yet he was able to avoid most of the noise by working in a closed office.
Shortly prior to recommencing work with Haldor Mr Jensen had continued to have treatment with Mr Couzins and was admitted to Hamilton Base Hospital for treatment of a swollen eardrum, which had not responded to antibiotics. Mr Jensen recalled that he was becoming considerably depressed, his tinnitus was continuing to trouble him, he was unable to sleep and his right ear remained persistently infected and did not respond to antibiotics. He recalled that the ringing in his ear was becoming "absolutely intolerable". Following the surgical procedure at the Hamilton Hospital he said there was "no tightness in the drum", the pain and discomfort was relieved but his hearing was not improved.
Mr Jensen sought rehabilitation in July 1993 but in November 1993 his application was rejected.
Mr Jensen recalled that his vertigo was deteriorating and he was referred by Mr Couzins to Mr Dineen who prescribed a "tinnitus masker". Mr Jensen said that the appliance did not assist him and he regarded it as being "another failure". Mr Jensen recalled his depression worsened and in August of 1994 his Mother died following an illness associated with heavy cigarette consumption. When asked was there a grieving process Mr Jensen said "the usual I suppose, one could say two to three weeks and then you are sort of over and done. It's just something you accept. Like I was trained in the Army how to accept death and it's the same type of thing".
Later in 1994 Mr Jensen suffered from gastric illnesses and following a gastroscopy arranged by Dr Edmonds, his general practitioner, he was prescribed medication. He continued to attend Mr Couzins and in early 1995 he was referred to Dr Ivers a psychiatrist in Warrnambool. At that stage Mr Jensen said "nothing brought me pleasure", he was not eating or sleeping and was losing weight. He said he had lost libido and was unable to concentrate.
Mr Jensen recalled that his treatment with Dr Ivers "had an impact" on him and "he tended to give me another way of looking at life". He was prescribed medication to assist him to relax and to sleep. However, in August 1995 he was charged with certain offences arising out of the possession of firearms, which resulted in a court appearance at Hamilton in November 1995. Mr Jensen said this arose following an argument between himself and his brother where each indicated that they would suicide by gunshot. Apparently Mr Jensen's father telephoned the police who attended their farm and by reason of that attendance the firearms were detected. Mr Jensen explained that the intention to commit suicide occurred because "Colin had spoken about it in his own mind, and my brother is the only relation that I've really got that I get along well with and I felt that without him there was no point in me absolutely being here".
In June 1996 the applicant qualified for disability support pension. At that stage he said his vertigo was "getting bad" and he did not feel that there was any change in his emotional state. When asked about his suicide ideation Mr Jensen said "I put that on hold for a while … with great difficulty".
In 1999 the applicant was continuing to attend Dr Ivers every three weeks. In January he appeared before the Hamilton Magistrates Court on charges of possession of Marijuana and was placed on a bond. In April he travelled to Queensland to visit a friend and despite his tinnitus attended a shooting range. He said he wore US military issue earmuffs and "fired at full-length range of my arms". In September he booked a flight to travel to Amsterdam but on arrival in Kuala Lumpar the pain in his right ear was so intense that he returned to Australia.
At the present time Mr Jensen said that he was not capable of working. He said even the dropping of a "cardboard box or files or whatever is enough to send it off". He said he has prevalent thoughts of suicide particularly when he recalls that he has been advised that there is no cure for tinnitus and has been told by his doctors that it could be up to ten years before drugs could be available for it. Mr Jensen continues to see Dr Ivers every three weeks. He has poor concentration and is withdrawn. Although Mr Jensen has obtained some relief work as a storeman at a pharmacy at the Hamilton Base Hospital he said his ability to concentrate and memorise and complete paperwork was poor and he would "not be able to last" in other employment. Mr Jensen said he had no computer skills.
In cross-examination Mr Jensen agreed that he was referred to Dr Rose by an Occupational Rehabilitation Unit and had been referred to Dr Ivers at the request of his solicitors. In these circumstances he acknowledged that his own doctors had not referred him for any psychiatric treatment. Mr Jensen agreed that he had been employed prior to the time he first consulted Dr Rose.
Mr Jensen also agreed following the episode at Puckapunyal on 23 May 1987 that he continued to attend parades, he participated in assault courses, he was promoted to the rank of Private, attended two camps, was selected to travel to New Zealand (and did so) and re-enlisted in the Army Reserve for a further period of three years on 20 June 1987 being approximately one month after the shot blast incident.
He agreed also that he purchased a pistol from a hotel in Footscray in June 1987 with the intention of suicide yet in the same month re-enlisted in the Army. He explained that the "brotherhood of the Army wouldn't allow me not to sign". He said there was a "military brotherhood" which prevailed and in the event that he did not re-enlist he would be regarded as a "weak bastard if I wasn't going to sign and I don't like being called a weak bastard". He said he did not tell any of his comrades that he had purchased a gun with the intention of suiciding because "I wouldn't expose that to them" and "because they tend to rely on you in a warfare situation".
Mr Jensen was taken to particular aspects of his service and confirmed that he had completed a "pioneer assault course" where one of the activities required him to complete a cutting charge being the application of slab explosive to concrete and cutting the concrete in half. Mr Jensen was commended by his superiors for the workmanship in undertaking this activity.
Additionally, Mr Jensen completed programmes for watermanship and use of explosives and weaponry, however throughout all of this activity Mr Jensen did not complain to his superiors or make any report concerning his tinnitus or vertigo. Mr Jensen said "it (the tinnitus and vertigo) interfered constantly but I am not one to complain about such things". Mr Jensen acknowledged that he had a duty to other members of his unit, however, one of the reasons he did not complain was because he would be "down-classed in the unit". He acknowledged that at 30 June 1988 he was found by his superiors to be "efficient" and whilst he said he did not know the qualifications for such a rating he said that he "imagined" that he would be discharged if he was found to be inefficient. Mr Jensen also acknowledged that he was medically certified on 26 February 1988 as being fit for overseas duty, which was a prelude to his tour in New Zealand.
During the New Zealand tour Mr Jensen said that he did complain of his tinnitus and vertigo to other service colleagues but only those who were not from his unit. He said there were other units forming part of the exercise and he complained to those persons because they were "different people" and there was "no actual connection between them and us". During that tour he used an M16 semi-automatic rifle and discharged between 10 and 15 rounds of ammunition. Mr Jensen said the bullets were blanks and the sound was the equivalent of a "pop".
Mr Jensen was referred to his hospitalisation in July 1988 after he was shot in the leg whilst on his father's farm. He was taken to the medical records following that admission where there is an entry on one occasion of "patient spent a comfortable night no complaints of pain" and on another occasion "satisfactory day spent". Mr Jensen said that he probably did not complain of his tinnitus or vertigo because "I was probably on panadine or something like that" and he would have "been more preoccupied with the fact that I'd nearly died". Mr Jensen said he also did not complain to Dr Edmonds, his family doctor of his tinnitus and vertigo until 1994 because he would not have complained to his GP because "a GP is not a specialist in ear nose and throat sections".
With respect to his capacity for work Mr Jensen said he worked on the family farm but he "lost interest in such things because there is no future in that". His family ran a beef farm and Mr Jensen said that he would have the skills to be a farmer "if I could physically use them". He said it was "noise" that prevented him from participating in farm activities. Despite this he said he did attend a shooting range in Queensland with a friend and discharged weapons because "the weapons we were using there I've never seen them before". Mr Jensen said he wore US military issue ear-plugs when attending the shooting range but these would not be suitable to use in work or on his farm because prolonged use of this type of ear-plug causes sweating and precipitates infection in the "ear canal". Between 1987 and 1990 Mr Jensen was engaged in self-employment as a wood-cutter where he cut and sold firewood. Within that period Mr Jensen said he would have cut wood for six months only and would have stock-piled and sold it for the remaining time. He said he would have worn earmuffs during the period of time that he was cutting wood. Mr Jensen explained that he was unable to undertake that work presently because whilst his tinnitus did exist then it is now worse and he said that probably from the middle of 1993 he has been unable to work because of the progressive worsening of his tinnitus.
DR EDMONDS
Dr Edmonds is a doctor in General Practice in Hamilton. Mr Jensen has been a patient since he was a child.
Dr Edmonds said that Mr Jensen consulted him in 1986 for back pain, which he regarded as muscular and which had resolved by April of 1987. In October 1989 he consulted with Mr Jensen for a right ear infection and at that time he obtained a history from Mr Jensen that he had a hearing deficit caused by an anti-tank shell sometime earlier whilst he was a member of the Army Reserve. Dr Edmonds also had a history in 1992 of hearing loss and loss of balance and in 1994 he said Mr Jensen had "significant tinnitus".
Dr Edmonds said he did not make any observation as to whether the hearing loss and tinnitus was affecting Mr Jensen's emotional state and said "I think retrospectively he was probably more disturbed than I gave credit to – I thought of. Because I was treating a physical problem."
Dr Edmonds said he had been desensitising Mr Jensen since February 1998 for a bee sting allergy but was not aware whether he was working and was not aware that he had been in receipt of disability support pension since 1996. Dr Edmonds has never assessed the applicant's capacity for employment.
In cross-examination Dr Edmonds said he attended Mr Jensen as an infant for ear infections which he said were common in children and was also attending Mr Jensen for bouts of dizziness.
Dr Edmonds said that Mr Jensen did attend him for treatment in 1989 for ear infections, which he (Mr Jensen) associated with a hearing deficit caused by his military service, however, there was no treatment offered nor was any referral to a specialist provided. On 15 March 1994 the records disclosed the first entry for complaint of tinnitus. Dr Edmonds recorded in his notes "tinnitus increasingly severe prevents him from working. Solicitor has suggested off-work certificate because of claim against Army".
Dr Edmonds was made aware of a report written by a Dr Neil, a psychiatrist, whom the applicant was referred by Dr Couzins. In that report Dr Neil recorded, in part, that she regarded the applicant as being "an intense young man preoccupied with his symptoms, their disabling effects and immutably focused on a recognition between not only his tinnitus and the accident but the ruination of his life, his only perceived solution being that the Army acknowledges and compensates appropriately". Dr Edmonds said he had not discussed issues of this type with Mr Jensen but this was his "impression". He said "I thought that he was – had every reason to become preoccupied with it, you know". When told that Dr Neil had also recorded that the applicant was "set on obtaining a litigious solution despite the failure of attempts to do so by his lawyers and doctors over the past few years" Dr Edmonds said "I agree with that".

In December 1971 Mr Jensen was reported to have suffered from viral encephalitis. Dr Edmonds said that this condition could have an effect on his hearing but had it contributed at all to hearing loss he thought that it would have manifested before 1987. Dr Edmonds said that viral encephalitis would not have had any effect upon the applicant's tinnitus.
DR MARK IVERS
Dr Ivers is a psychiatrist in practice in Warrnambool. He has been a psychiatrist in practice for 12 years and has treated Mr Jensen initially following a medico legal referral by his solicitors in 1995.
At first consultation Dr Ivers was of the opinion that the applicant had depressive and anxiety symptoms including poor memory and suicidal thoughts. He found the applicant to display a sense of hopelessness and recorded that the applicant had mentioned thoughts of being better off dead and concerns about his compensation case. He recommended treatment and prescription of medication. He also recommended that Mr Jensen consult Dr Edmonds and request a referral to him (Dr Ivers) for treatment. Dr Ivers had a history of the applicant suffering from tinnitus (which was the most prominent of his neurological or physical symptoms) and which he was told was constant, changed in pitch and caused sleeplessness. He also had a record of complaints of vertigo.
Dr Ivers said that the applicant had been depressed since 1995 although it was his "impression" that there was some improvement in his symptoms in the last few months. Nonetheless, he said Mr Jensen continued to present with depressive symptoms which had fluctuated but which had been present throughout since 1995.
Dr Ivers said that in his opinion the applicant's depressive conditions can exacerbate the tinnitus. He said that anxiety is a known cause of tinnitus and by reason of the anxiety symptoms exacerbating of his tinnitus there was interaction between both cause and exacerbation.
In terms of the applicant's capacity for work Dr Ivers said that there had been occasions where the applicant had been very depressed and suicidal and unable to work by reason of psychiatric symptoms alone. He said there were other occasions when the depression had not been as bad but his ability to work had been restricted by tinnitus. He said that "most of the time" since 1995 the applicant had been unable to work because of psychiatric reasons. Although there were occasions where the applicant could have done "some sort of work even if it was on a part time basis", he thought the applicant was poorly motivated but said that this was associated with his depression. Despite this he thought there was improvement in the applicant's condition over "the last four months" (since November 1999) and thought that the applicant's ability to work "probably would be reasonably good but again the tinnitus is the big problem there and I don't know how long this improvement is going to go on for".
Dr Ivers said the applicant would continue to need treatment to improve his self-esteem, to reduce his sense of hopelessness about the future, to encourage his ability to work and what he is going to do with the rest of his life.
Dr Ivers, however, told the Tribunal that the applicant's father had suicided in early February 2000 and he said that he will be attending Mr Jensen weekly "to help him work through the grieving aspects of his father's suicide". He said that he thought the applicant would find it difficult to cope with his father's death. He said the applicant was then in a state of shock and disbelief and he (Dr Ivers) rang Dr Edmonds to discuss these concerns. He said another aspect which was interfering with the applicant's state was that he had been taken into custody and questioned at the Hamilton Police Station in relation to his father's death and it was believed that he was being questioned by the Homicide Squad from Melbourne.
In cross-examination Dr Ivers said that he relied on the history given to him by Mr Jensen that there was no family history of psychiatric disorder. Nonetheless, Dr Ivers said that although there was evidence of the applicant's father having suicided and a history of suicide ideation by the applicant and by his brother he said it did not follow that Mr Jensen would have necessarily become depressed but it would have increased his risk of depression. Dr Ivers said that the most disabling feature of Mr Jensen was his tinnitus.
Dr Ivers further said that the police attendance at the applicant's farm in January 1999 following a complaint by his father, the apparent dementing illness of the applicant's father and intervention orders sought and obtained by the applicant's father against his brother all amounted to a significant dysfunctional arrangement domestically and could possibly lead a person to suffer from anxiety and depression.
Dr Ivers was aware that the applicant had prior work experience from his time in the Army, his self-employment blasting tree stumps, his employment operating a wool press, working as a pharmacy assistant and having qualifications to permit him to hold an explosives licence permitted forming an opinion as to the applicant's capacity to undertake employment. Additionally, the applicant held a licence to drive a motor vehicle. Despite this Dr Ivers was of the opinion that the applicant's poor motivation associated with the emotional sequel to tinnitus and hearing loss had largely operated against him obtaining employment prior to the end of 1999 when he noted that there was an improvement in his mood, consistent with the ability of the applicant to travel to Queensland and attempt a trip to Amsterdam.
Dr Ivers said that it was in the applicant's interest to work because it would be "good therapy from a psychiatric point of view". Nonetheless, he was largely of the opinion that the applicant had poor concentration and sleep disturbance and in his view the applicant has "not been fit enough at any stage from that point of view to undertake work".
When asked to comment on the applicant's apparent ability to recall detail of weapons and military type events, Dr Ivers said the ability to concentrate and have recall depended on context and on the applicant's level of anxiety from time to time. Dr Ivers said that in the context of employment instructions for a menial job might take only five minutes before a person could remember detail yet it was relevant, he said, to consider the ability of a person to maintain concentration throughout a full day of employment.
When taken to the reports prepared by Dr Rose and Dr Strauss who both examined at the request of the respondent, Dr Ivers said his diagnosis of the applicant was that of reactive depression, however, he agreed also with the diagnosis put by the other doctors of dysthymic disorder. He also agreed with Dr Rose and Dr Strauss that the applicant had anger and hostility directed against the respondent with respect to the way in which his compensation claim had been processed. He also agreed with Dr Rose and Dr Strauss that the applicant had from time to time suffered from depression of major depressive proportions.
HUGH SIMPSON MILLAR
Mr Millar is an ear nose and throat surgeon who examined Mr Jensen at the request of his solicitors on 18 November 1993.
He said there was no accurate method of measuring the intensity of tinnitus and he regarded it as exhibiting subjective symptoms, which vary between patients. It was his opinion that persons can suffer psychological affects by tinnitus and an anxiety state or depression could aggravate the awareness of tinnitus. Having heard that the applicant gave evidence that his tinnitus worsened "as time has gone on" Mr Millar said that would be "less common" amongst persons and if the worsening of tinnitus were accepted as a fact he would be looking for explanations in psychiatry.
In cross-examination Mr Miller said that a hearing test he performed revealed no abnormality in the applicant's left ear and a right ear high frequency hearing loss above 2000 decibels. It was his opinion that a loss of that order would not prevent the applicant from working except in "high intensity noise". He said he had many patients who have a hearing loss similar to that of the applicant who are employed in a wide range of activity. He expected that the applicant would be able to work as a farm labourer so long as he was not using high noise level equipment yet the applicant would be capable of wearing ear protection. It was his opinion that the applicant would not be prevented from working by reason of his tinnitus. It was his opinion that the applicant's tinnitus was consistent with the blast to which the applicant was exposed when in the Army Reserve but he would have expected with time for the tinnitus to have diminished. When he heard of the evidence of Dr Edmonds that the applicant had a right ear infection in October 1989 Mr Millar said that it was unlikely that any middle ear infection would worsen the applicant's tinnitus unless there could be a proved aggravation of the hearing loss.
ROSS DINEEN
Mr Dineen is an audiologist who holds a degree in behavioural science, a post-graduate degree in audiology and a PhD in applied science and tinnitus. He has been in practice as an audiologist for 20 years and has been "interested in tinnitus" for 15 years. His thesis arose from a particular interest he holds in the level of distress suffered by persons as a reaction to tinnitus. Mr Dineen has seen Mr Jensen on four occasions, the first being in 1990, upon referral from the Victorian Deaf Society and on the last occasion in December 1998, upon referral from the applicant's solicitor.
Mr Dineen agreed that a report that he prepared dated 2 December 1998 and provided to the applicant's solicitor accurately recorded his opinion. Relevantly that report concludes (in part):
"evaluation of the impact of the tinnitus has indicated a highly intrusive tinnitus which has significantly undermined Mr Jensen's perceived quality of life. There has been a consistent level of complaint reported over the past 11 years about the impact of these injuries on Mr Jensen's quality of life. The tinnitus has become the focus of the distress resulting from negative impact of the hearing injury on his ability to be engaged in satisfying employment and normal social interactions. He has consistently reported symptoms of clinically significant levels of depression since the incident in 1987. There is no evidence of a history of depression prior to the incident. The perceived loss of quality of life and the associated feelings of hopelessness for the future has led to frequent ruminations about suicide.
As there is currently no clinically proven treatment available for the hearing injury and the associated symptoms of tinnitus, hyperacusis and dizziness, in my opinion it is unlikely that Mr Jensen's physical and emotional health will be restored to the levels existing prior to the incident that caused the injury to his auditory system. Without significant abatement of the hearing injury symptoms it is unlikely that he will be able to return to productive employment. Mr Jensen will require ongoing support and counselling to help him live with the highly disabling effects of this traumatic injury to auditory functioning".
Mr Dineen said that his research was supervised by a registered psychologist and the instruments used in his analysis were established clinical tools. He said he sought to investigate and study how distress occurs with tinnitus because in his experience only a small proportion of persons who experience tinnitus experience levels of distress. He found that depression and anxiety are commonly reported clinical problems associated with tinnitus and affect the reaction to tinnitus. It was his conclusion that tinnitus causes distress which makes it difficult for persons to cope and reactive depression is a sequelae of tinnitus. Although he has only seen Mr Jensen on four occasions Mr Dineen said that Mr Jensen had consistently reported distress over an eight year period and the level of distress had not changed and remained at significant levels. He said these comments were made and these features were exhibited before any compensation claim was considered or made.
In cross-examination Mr Dineen said that he had supervised Mr Jensen's attendance in rehabilitation programmes involving masking and cognitive counselling.
In terms of the applicant's ability to return to employment Mr Dineen said that there were a number of issues which influenced his ability to work. He acknowledged that attitude was a factor as was motivation, however, he reaffirmed that the level of the applicant's distress had been constant between 1990 and 1998. He had a history of the applicant previously undertaking farm labouring but he had no history of the applicant being self-employed as a wood-cutter or that he had travelled to Queensland. He did not necessarily agree with Mr McInnis that it would have been advisable to look at the applicant's work history and when told that the applicant had not attempted to work since 1994 when Dr Rose first reported that the applicant had no psychiatric disability, Mr Dineen said that there had not been any increase in the reported level of distress since the compensation claim was made.
Mr Dineen had no history concerning the applicant's family; however, the stress reaction type questions that he asked of Mr Jensen referred to relationships with partners. He said Mr Jensen "saw a lot of stress" in relation to a lack of a partner but he (Mr Dineen) had no information about his relationship with his father or his family.
michael william epstein
Dr Epstein is a psychiatrist who saw the applicant at the request of his solicitors, for the purposes of these proceedings, on 16 December 1998. He provided a report dated 21 January 1999. At the conclusion of his report Dr Epstein recorded:
"1.Douglas Jensen suffered injuries during the course of his training as an assault pioneer with the Army Reserve on 23 May 1987. The injuries include damage to his right ear, associated with tinnitus, deafness, and vertigo. He subsequently developed a major depressive disorder, panic disorder and agoraphobia and these conditions continue to trouble him.
2.His quality of life has diminished.
3.He does require continuing psychiatric treatment.
4.His condition currently appears stable and his prognosis is poor."
In cross-examination Dr Epstein said that he was familiar with persons who suffer depression and from tinnitus and that there are persons who suffer from one or both conditions and who are gainfully employed.
Whilst Dr Epstein did not have a history of the way the applicant's family functioned, he acknowledged that his family may be a source of either support or conflict and depression. He acknowledged that the applicant may have worried about his brother's suicidal ideation, the altercation he had with his brother and the eventual attendance by police at the family farm. He acknowledged that these events could be depressing, as would the eventual police charges and attendance at court. He said he took a history from Mr Jensen that he was distressed by his mother's death and was aware that the applicant's father had taken out an intervention Order against his brother. He was also aware that following the intervention by police at the family farm which gave rise to charges of possession of guns the applicant was finger printed and lost weight over the following eight weeks. Dr Epstein said these events contributed to a physiological impact on him.
Dr Epstein said having spoken to the applicant about his service in the Army Reserve, his contact with the Department of Defence and his attempts to obtain compensation that the applicant expressed anger and a sense of being cheated from his entitlements. He said that his intended career in the Army was an important event to him and by reason of his "limited life experience" the Army presented "an entree to a better life and that had been denied him".
Dr Epstein was taken to the report of Dr Neil (refer earlier) and agreed with her conclusions that the applicant was preoccupied with his symptoms. He said Mr Jensen did not suffer from a post-traumatic stress disorder but did suffer from a depressive illness. He disagreed that the applicant was seeking a "litigious solution" but said the applicant was "seeking justice".
In terms of the applicant's capacity for work Dr Epstein noted that Mr Jensen is a "comparatively young man" and that it would be "premature and foreclosing too quickly on the situation to say that he will never be able to return to any sort of work again". He was aware that the applicant had performed "various jobs" after he was discharged from the Army Reserve and in his opinion the applicant was capable of working on farms (but away from machinery) where he would not be exposed to any pressure and where there would be little responsibility.
NIGEL STRAUSS
Dr Strauss is a psychiatrist who examined the applicant at the request of the respondent on 2 December 1998. He provided two reports following that consultation.
Dr Strauss diagnosed the applicant as suffering from dysthymia which he described in his report as a "chronic depressive state". In evidence he said that the DSM4 described this diagnosis as a mild depressive condition which affects a person daily and has to have been in existence for several years before the diagnosis can be made.
Dr Strauss was reminded that there was evidence of the applicant having purchased a gun with the intention of suicide, an intention expressed by the applicant's brother to suicide, the recent evidence of the apparent suicide of the applicant's father, an intervention Order having been obtained by the applicant's late father against his brother and police intervention as a result of a complaint lodged by the applicant's father. Dr Strauss said that with that history the "family situation is quite unstable" and in those circumstances "that would confirm my thoughts that this gentleman does have paranoid traits in his personality, that the whole family environment is quite paranoid, aggressive and angry and threatening, and certainly this unfortunate information that you have just given me confirms that it's a rather unstable situation".
Dr Strauss did not find any evidence of poor concentration or poor memory and it was his opinion that the applicant was not totally incapacitated and could cope with "some employment".
In terms of the comments made by other doctors of the applicant being angry either with the Army or with the Military Compensation Scheme, Dr Strauss said "when compensation matters become embroiled with psychiatric problems, it becomes difficult to know exactly what he is motivated by a desire for compensation and what is actual psychiatric illness (sic)".
In cross-examination Dr Strauss said that it was possible to separate the applicant's suicide ideation and his family dysfunction. He acknowledged that the applicant purchased a gun in 1987 at a time when he was young and there was no apparent family problems.
Despite his opinion that the applicant did not have poor memory or concentration Dr Strauss acknowledged that he took a history of the applicant having told him that his concentration and memory was poor and that he tires easily after driving. He also took a history that the applicant becomes easily confused. Dr Strauss explained that he does not take "at face value" comments made to him by a patient. He said what the applicant had told him was "purely subjective as far as I am concerned. It may be right". He said he noted objective signs at interview with no evidence of concentration or memory deficit. He said the applicant gave him a "good history" and his concentration did not lapse during the assessment. He said what the applicant had told him "may be absolutely truthful, and I have no absolute evidence to say that what he said is untruthful, but it remains a possibility".

Dr Strauss did acknowledge that there was an association between the applicant's depression and his tinnitus and hearing loss and vertigo. None the less he said he was not an ear nose and throat specialist and in his experience a person's experience of tinnitus is subjective. He said if he were to accept that the applicant did suffer from severe tinnitus then that would have a bearing on the severity of the psychological reaction.
Dr Strauss was asked to comment upon whether a person who suffers a psychological reaction to tinnitus in the presence of ongoing tinnitus could perceive that the effects of tinnitus were worsening. He said it was "not something I am particularly aware of" and "I'm not all that aware of it feeding back and worsening the actual symptom itself. But I suppose that is possible". He said the applicant had a "marked response" to tinnitus at a level greater than what he would have normally expected. He said that had a bearing with his pre-existing personality trait however he also took account of the litigation when he referred to "marked response".
With respect to the interview of the applicant, Dr Strauss said that "it wasn't easy getting a clear cut story" and his opinion was based on the information that he did obtain. He said he had available to him a summary of medical reports which refer to some of the applicant's work activity and whilst he "generally" holds the opinion that there is advantage in attending a person in a medico legal environment on more than one occasion, he found the applicant was "not someone that you would wish to confront or ask the same question several times. He is the sort of person that one has to be very sensitive with".
In cross-examination Dr Strauss was acquainted with the applicant's evidence of attending a shooting range in Queensland and his evidence of being unable to work in the presence of noise. Dr Strauss said he was unable to reconcile this evidence and highlighted what he said was the difficulty assessing the applicant's level of activity and "assessing what he states at face value".
norman robert rose
Dr Rose is a psychiatrist who examined the applicant on 18 April 1994 and 12 May 1998 at the request of the respondent. He provided two reports following those consultations.
Dr Rose said that the applicant was unhappy with the conclusions expressed in his first report and told him so during the second consultation. In the first report Dr Rose concluded that Mr Jensen was not suffering from any psychiatric illness and reported there was no evidence that he did suffer a psychological or psychiatric illness as a result of his service in the Army Reserve. He also concluded that there was no evidence of any psychiatric or psychological incapacity and that the applicant's "problems" with rehabilitation were "entirely motivational and related to unrealistic expectations".
When he learnt that the applicant had recently attended a firing range in Queensland Dr Rose said that the applicant had a "preoccupation with things military and his failure to pursue a military career". He also said that attending the firing range was inconsistent with the applicant's claimed intolerance of noise.
When he was told of the circumstances of his family (referred to earlier in this decision) Dr Rose said that it amounted to "a family history of rage, either turned against outside or turned against the self". He said that "Mr Jensen's problem with rage seems to be manifested as rage against the system, against the Army, against the Department, for what he says is non-recognition so that is how the rage is expressed in this way but the rage, I mean, can be manifested in various ways and through weapons".
In cross-examination Dr Rose was asked to reconcile why he found the applicant was not depressed at first interview yet he found the applicant to be angry and disgruntled. He said these findings were not indications of any psychiatric illness or depression but said that they "may be" consistent with depression. When pressed by Mr Jewell Dr Rose agreed that a preference to avoid noise was "not a common symptom of depression" and "it's certainly not inconsistent". He agreed that irritability could be consistent with depression and his finding that the applicant had "developed a total intolerance of his tinnitus indicative of a marked reaction" could amount to depression.
He said that he found the applicant to be depressed at second interview because his presentation was "different". He concluded that the applicant's concentration "is mostly alright" but denied that that comment implied that there was deficit. He said he had no information as to the circumstances when his concentration was not "alright" and agreed that it would have been important to investigate this. Dr Rose said that having learnt that the applicant watches television his concentration was "normal". He acknowledged, however, that he did not investigate for how long or at what frequency the applicant did watch television but because the applicant said to him that his concentration was "mostly okay" he assumed that he was able to follow television "without too much trouble". Dr Rose agreed that having found that the applicant was able to mow grass and paddocks when he wears earplugs that he did not obtain any detail of the duration or frequency of mowing. He agreed that it would have been important to obtain this information to make a professional assessment but said that he had adequate information upon which to base his opinion. Dr Rose said that the applicant "was anxious to tell me about how bad he felt as a result of his experiences with the firing of the weapon whilst he was in the Army. If he was keen to tell me about how much he was affected by all this why didn't he tell me. He told me how angry he was. He told me a whole lot of other things. He told me about how he couldn't tolerate noise. He told me about the problems with tinnitus. He told me it was driving him insane but he did not choose to tell me that he had problems with his activities. His focus was "otherwise". Dr Rose then agreed that he had a responsibility to elicit information, which would have required him to direct the patient's mind to the topic over which information was sought. Dr Rose was also taken to his report where he commented "I wondered why he had not done so in 1987 or beforehand" (joined the permanent army). Dr Rose said he did not ask him why he did not join the permanent army and agreed "it would have been easy to stop the wondering by asking the question".
In relation to the second consultation Dr Rose said that he was not influenced by a letter he received from a compensation officer who arranged the appointment, part of which he recorded at page 5 of his second report. Despite this Dr Rose recorded in his report that "these documents are at variance with the history as given by Mr Jensen". He said it was his practice when conducting a medico legal assessment to look at all available information including reports but the prime source was the history given by the patient. He said he did not ask him "explicitly" about documented evidence of employment as a shot-firer in 1990 because he did not know what access Mr Jensen had to other reports. Dr Rose said "I felt that ethically and otherwise I was not going to let the cat out of the bag. So I had to ask him obliquely rather than specifically about that. I was constrained by the circumstances that I could not ask him directly about handling explosives. So I asked him to tell me what he had done and he failed to mention it". None the less Dr Rose agreed that the employment as a shot-firer occurred over a period of three days some eight years prior to the consultation and agreed that it was a possibility that Mr Jensen could have overlooked mentioning that employment. When asked to comment as to whether it would be fair to record that oversight as a mark of inconsistency against him Dr Rose replied "now we know about the shooting trip in Queensland I am not so sure".
Dr Rose agreed that the information that was put to him by the compensation officer referred to in his report was the same information put to Dr Ivers. He acknowledged that Dr Ivers reached different conclusions. When asked to comment upon Dr Ivers having completed "a very detailed examination as to those facets" and that it was something that he (Dr Rose) did not do he said "not to that degree". He agreed that Dr Ivers did have "more history on certain aspects of the case" but that he was "not sure it would mean it puts him in a better position to make an overall assessment".
LORAINNE ELSASS
Dr Elsass is a psychologist who examined Mr Jensen on 22 August 1995 and 15 September 1998 at the request of his solicitors.
Dr Elsass diagnosed the applicant as suffering from post traumatic stress disorder. She was of the opinion that he suffers a serious psychological disorder and that he was unable to undertake any work either manual or otherwise. She reported that his assessment in 1998 was no different to her assessment of him in 1995.
In cross-examination Dr Elsass was aware that Dr Strauss and Dr Ivers did not assess a post traumatic stress disorder and did not assess total incapacity. She was not "troubled" by the opinions expressed by Drs Strauss and Ivers.
She agreed with Mr McInnes that it was "worth a try" for Mr Jensen to pursue rehabilitation through the Tinnitus Society or the Deafness Foundation.
DR MARK IVERS
On the evening prior to the fourth day of these proceedings the respondent's solicitor made an urgent application for a Directions Hearing with the purpose of seeking a Direction to have the applicant recalled to give evidence.
Annexed to the letter making the application was a copy of a letter forwarded to the applicant's solicitors, a copy of the applicant's solicitor's reply and a copy of a newspaper article from the "Warrnambool Standard" dated 23 February 2000.
The photocopy of the newspaper article is poor quality but it purports to depict a photograph of the entrance to the farming property where the applicant and his late resided above a headline of "A Quiet Country Life Ends With Foul Play". The article quotes a homicide squad detective who indicates that the police no longer believe the death of the applicant's father was by suicide and that his death was being treated as a murder.
The application to recall the applicant was put (during the Directions Hearing) upon the basis that the history obtained from Dr Ivers and the opinions that he had expressed were in part influenced by the suicide of the applicant's father. It was put that the premise of the respondent's case was apparently incorrect by reason of the Homicide Squad treating the death as being a murder. It followed, as was submitted, that the applicant's reaction to his father's death may be different if the death was treated as a murder.
The applicant's representative at the Directions Hearing submitted that the applicant was then in a fragile and agoraphobic state and was unavailable to give evidence either by telephone or video or to travel to Melbourne.
I indicated that I would not make a decision as to whether the applicant should be recalled until I heard evidence from Dr Ivers.
Dr Ivers became available at short notice and gave evidence by video. He said he had been attending the applicant weekly since February and said that the applicant had become paranoid and agitated, he had become preoccupied with serial killers, mass murderers, and was giving information about them. He said the applicant had told him that he had recently travelled to Clifton Hill in Melbourne and "retraced the steps of Julian Knight (the person who was convicted of the multiple killings in Clifton Hill in the mid 1980s). He said he had attended McDonalds in Clifton Hill and "checked out the scene of the Hoddle Street massacre" and had "stood near the tree he thought Julian Knight had stood". He said he referred to Ramsden Street, he referred to the police shooting of a person Gary Abdullah and to the Walsh Street killings of policemen. He said he had observed the police helicopter hover above his home, believed his telephone was tapped (by the police) and had referred to some mass murderers in the United States. In these circumstances Dr Ivers had referred Mr Jensen to a forensic psychiatrist in Melbourne at the Mont Park Hospital. On the night before giving his evidence Dr Ivers said he spoke with the psychiatrist who together with Dr Ivers were very concerned about Mr Jensen. He said Dr Bowrey-Walsh, the forensic psychiatrist, had indicated to him (Dr Ivers) that "any further pressure on Mr Jensen could lead to him developing not just paranoid ideas but a paranoid psychosis possibly in which he may feel that he has to defend himself whilst in a psychotic state". He said Dr Bowrey-Walsh was concerned that any further pressure could "tip him over the edge". Dr Ivers was concerned that if the compensation proceedings continued and that Mr Jensen was required to give evidence that "his mental state is so fragile that he is just an unacceptable risk to himself and to the community".
Mr Jewell and Mr McInnes asked questions of Dr Ivers. He reinforced the views that he gave and which are expressed above. At the conclusion of the respondent's questions Mr McInnes indicated that he was instructed not to pursue any application to recall the applicant.
CONCLUSION AND REASONS FOR DECISION
This is a very complex application.
In May 1987 the applicant was engaged in the discharging of a Gustav anti-armour weapon at Puckapunyal whilst he was a member of the Army Reserve. In the course of operating the weapon hearing protection inserted into the applicant's right ear became loosened and dislodged. The applicant was then exposed, whilst his right ear was unprotected to the noise emanating from the weapon. It was estimated by Mr Couzins to be in excess of 120 decibels and in the vicinity of 140 decibels (T20 page 32). It would appear also by the subsequent discharge of blood from the applicant's ear and his complaints of giddiness and nausea that sound pressure waves caused vestibular and auditory damage to his right ear.
Mr Jensen sought treatment initially from Dr Marshall in Hamilton who referred him to Mr Hill in Ballarat. A claim for compensation for hearing loss was made and an assessment of entitlement to benefits under the Compensation (Commonwealth Government Employees) Act 1971 was made in favour of the applicant. Later Mr Jensen pursued compensation in the nature of medical expenses and travelling costs associated with attending specialists in Melbourne.
The Department of Defence on 20 August 1990 (T13) accepted that the applicant suffered loss of balance and tinnitus. On 12 July 1993 the Department of Defence accepted liability for "vertigo" (T19).
The decision under review in this application is a denial of the applicant's claim for "psychological illness as a sequel to accepted hearing loss and tinnitus".
In commencing the following summary of the evidence and the reasons for decision I accept as a fact that the applicant did suffer injury in May 1987 when he was exposed to the noise of the anti-tank weapon. I accept also as a fact that the consequence of the unprotected exposure to that discharging weapon was the subsequent occurrence of vertigo and tinnitus. I also accept as a fact that to the present time the applicant suffers from tinnitus. Curiously, there was no explanation at the hearing as to the absence of tinnitus being recorded as an injury in the claim form of 20 September 1993. Additionally, the respondent was not then put on notice that depression was a sequel to the hearing loss and vertigo, however, the respondent was notified (formally) of it being in part the subject of the applicant's claim by a letter that his solicitors wrote to the respondent on 7 February 1997 (T38).
Having heard and observed the applicant, having heard the evidence particularly of Dr Ivers (and read his reports) and heard from and read the reports of Drs Strauss and Rose I am satisfied that the applicant does suffer a psychiatric sequela to the hearing loss, vertigo and tinnitus which is properly described as a reactive depression. I note that Mr Millar in his report of 18 November 1993 foreshadowed that the applicant would need treatment because he was "concerned as to the psychological status of this young man who seems to be very depressed by the constant tinnitus".
Thereafter the respondent arranged a medical examination with Dr Rose. The reasons for doing so were not clear because the applicant had not claimed depression in his claim form and noting that the examination was arranged in April 1994, the applicant's solicitors had not at that stage notified the respondent that depression was sought as a sequel to the hearing loss and tinnitus. Although Dr Rose did not find the applicant was depressed thereafter the respondent received a number of medical reports from Dr Ivers who not only diagnosed depression but found that it was related to the hearing loss and tinnitus.
Additionally a doctor who examined Mr Jensen for the purposes of a claim he made for disability support pension found "clinically the findings are consistent with significant psychiatric disorder". This finding followed an examination on 20 June 1996. The doctor assessed a 30% impairment for "depressive disorder" under the tables appended to the Social Security Act.
I was moved by the evidence of Dr Ivers and am satisfied by the observations he has made throughout his years of treatment of the applicant that the depression continues and has a relationship to the trauma of 1987. The need for treatment from the effects of tinnitus will continue consistent with the opinion of Dr Ivers (refer paragraph 45) and despite the applicant's recent crisis.
I am therefore satisfied that the respondent has been and continues to be liable to meet the reasonable medical and like expenses associated with the applicant's treatment for depression, which for the reasons given above are a sequel to the tinnitus.
I am not satisfied, however, that there is incapacity by reason of the hearing loss, vertigo and tinnitus.
The applicant said that he purchased a gun within a matter of weeks of the exposure to the noise in 1987 with the intention of suicide, such was the level of his distress and discomfort by reason of the tinnitus. Fortunately he did not suicide but, within a matter of days, re-enlisted in the Army for a further three years. He also said that he did not discuss the presence of tinnitus with his comrades, nor did he report it. He said that there was a "brotherhood" within the Army that caused him to re-enlist and operated against reporting injuries or illnesses. These events, as I have recorded above, are beyond my comprehension. Thereafter the applicant remained enlisted for in excess of 12 months and was involved in a number of manoeuvres, which not only were performed satisfactorily, but earned him a rating of "efficient". As to why the applicant resigned from the Army Reserve remains (at least to me) a mystery. I cannot understand, on the evidence, why he did resign. I note he said "he couldn't go on" (refer paragraph 11) but why he "couldn't go on" was not explained. Having satisfactorily completed manoeuvres for the preceding 12 months and obtained the rating that he did I would have thought that the applicant was able to cope with his hearing loss and tinnitus also because it was not until the mid 1990s that the applicant said that his tinnitus became severe and had worsened. Yet the fact that the applicant was able to undertake his manoeuvres indicates to me, at least at that time, a capacity for employment either as a member of the Army Reserve or in the workforce outside the Army. The applicant said that he had intentions eventually of becoming a member of the permanent Army and I can see no reason why he could not have undertaken that pursuit. The applicant is obviously a person very interested in the military and weaponry. He is apparently an avid reader of military periodicals and books. There would be no doubt in my mind that he was capable of being a good soldier.

After he resigned from the Army he was engaged in various forms of employment until the mid 1990s when he ceased working. He was able to undertake self-employment as a shot-firer, as a wood-cutter, as a pharmacy assistant at the Hamilton Hospital and operated a wool press at Haldor Equipment. He also completed some paper work and administration with Haldor. From time-to-time he worked on his father's farm as a farm labourer.
All of this demonstrates to me the capacity to undertake a wide range of employment, all of which was within his capacity. I am unable to comprehend on the evidence why the applicant ceased work altogether yet I am satisfied that the applicant has retained a capacity to undertake employment. The applicant said that his tinnitus worsened in the mid 1990s and he became incapacitated. I accept that it did worsen but I cannot on the evidence be satisfied that it has precipitated a total incapacity.
I would acknowledge that there are some types of employment to which the applicant would not be suited such as working in the presence of high frequency noise. If he were to engage, for example, in farm labouring type work there would be occasions undoubtedly where he would be exposed to noise. On those occasions he would be capable of wearing ear protection. He has by his prior work experience demonstrated a capacity in any event to work in the presence of noise namely his employment as a shot-firer and as a wood-cutter.
Mr Jensen has been absent from the workforce for many years. He may well find it difficult to return to the workforce or satisfy a potential employer. I have found that the applicant has suffered an injury but it does not result in an incapacity for work (refer s36 of the Safety Rehabilitation and Compensation Act 1988). I do not know whether the applicant has a permanent impairment to entitle him for an award of compensation under s24 of the Act. To my knowledge no claim has been made. Considerations of this type were not part of the current review. There is evidence, however, from Dr Strauss who found permanent impairment after 1 December 1988. If the applicant were to establish that he did have a permanent impairment subsequent to 1 December 1988 it may give him an entitlement to another form of compensation and or it may entitle him to argue an entitlement to have rehabilitation under s36 of the Act.
The applicant has much to offer a potential employer and I would hope with the end of this litigation that he return to the workforce. He has suffered personal tragedy in recent years yet his tinnitus remains and he should continue to have treatment for the consequences of it. It is for these reasons that I am satisfied that the respondent remains liable and has been at all times liable for the cost of medical and like expenses associated with treatment of the tinnitus and the emotional sequela to it.
I am not satisfied, as was suggested at the hearing, that the applicant was motivated by a sense of resentment towards his former employer, nor am I satisfied that the applicant has a "sick mind" directed towards his former employer which has contributed to the tinnitus or hearing loss or vertigo or the emotional sequela to those conditions (refer Australian Telecommunications Commission v Tsikas 1986 5 AAR 173). Mr Jensen may well have cause to be angry with the first opinion expressed by Dr Rose, it being an opinion I am satisfied was expressed superficially and without adequate attention to detail or at least obtaining an adequate or competent history. It would appear from at least the manner in which Dr Rose gave his evidence that he was more intent on prosecuting the respondent's case.
I am satisfied that the overwhelming and continued presence of tinnitus is responsible for the applicant's ongoing need to have treatment for it and for which in my view the respondent is liable.
For the above reasons the application under review should be set aside.
The respondent shall pay the applicant's costs.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Linda A Nemeth............................................
  Secretary
"
Date/s of Hearing  17 March 2000
Date of Decision  1 May 2000
Counsel for the Applicant        Mr Jewell
Solicitor for the Applicant
Counsel for the Respondent    Mr McInnis
Solicitor for the Respondent