Kemp and Comcare (Compensation) - [2019] AATA 3552

Kemp and Comcare (Compensation) [2019] AATA 3552 (10 September 2019)
Division:GENERAL DIVISION
File Number: 2018/2138
Re:Edward Kemp
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:10 September 2019
Place:Sydney

The Tribunal decides that:

The reviewable decision of the respondent dated 16 January 2018 is set aside and the matter is remitted to the respondent for reconsideration with a direction that the binaural hearing loss suffered by the applicant is 6.2%.
The respondent is ordered pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the costs incurred by the applicant of these proceedings.
...............................[sgd]...............................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – claim for compensation in respect of ‘bilateral sensorineural hearing loss’ – whether applicant suffers from a permanent impairment – whether applicant entitled to compensation – whether calculation of applicant’s hearing loss exceeds 5% binaural hearing loss threshold criteria – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 34D, 42C, 43
Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 29, 39, 40 (repealed)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7, 14, 24, 62, 67, 124
Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 78
CASES
Australian Postal Corporation v Oudyn [2003] FCA 318
Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561
Behan v Australian Telecommunications Corporation [1990] FCA 502; (1990) 26 FCR 337
Comcare v Burton [1998] FCA 1144; (1998) 50 ALD 846
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; (2005) 148 FCR 472
Commonwealth of Australia v Snell [2019] FCAFC 57
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 87 ALR 506
Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 93 ALJR 629
Hospital Benefit Fund of Western Australia v the Minister of Health Housing and Community Services (1992) 39 FCR 225; 28 ALD 50
Novosel v Comcare [2017] FCA 722
Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39; 27 ALD 309
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Comcare, ‘Guide to the assessment of the degree of permanent Impairment’ (Edition 2.1, 1 December 2011) – Table 7.1
National Acoustic Laboratory 1988 Tables
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
10 September 2019
The applicant worked for a Commonwealth instrumentality on two occasions. From 24 October 1973 until June 1984 he worked at the Quarantine Station at North Head as a quarantine assistant.
In 1984 he was transferred to Sydney Airport at Mascot, where he continued until his retirement from employment on 13 May 1999. During that period for several years from June 1991 until 19 September 1995 his employer was the New South Wales government rather than any Commonwealth instrumentality or agency.
At the Quarantine Station his duties were general maintenance which mostly included mowing with a petrol lawnmower, a whipper snipper, edger and a diesel tractor and slasher. For the last few years at the Quarantine Station he was also a boiler attendant. All of that employment involved substantial noise.
At the airport his job also involved substantial noise because he worked on the tarmac for periods, albeit with some noise protection.
The claim which he made on the respondent was for permanent impairment by reason of partial deafness. That claim is made under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Section 24 provides as follows:
24 Compensation for injuries resulting in permanent impairment
1Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
2For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
3Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
4The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
5Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
6The degree of permanent impairment shall be expressed as a percentage.
7Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
7ASubject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(c)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
8Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)the impairment constituted by the loss, or the loss of the use, of a toe;
(c)the impairment constituted by the loss of the sense of taste;
(d)the impairment constituted by the loss of the sense of smell.
9For the purposes of this section, the maximum amount is $80,000.
Over the period when he was working for the Commonwealth, the legislation governing his claim changed, because of amendments made to the Safety, Rehabilitation and Compensation Act1988 by the Safety, Rehabilitation and Compensation Act 2001. By the 2001 Act, section 24 was amended to reduce the threshold for hearing loss claims to a binaural hearing loss of 5%. For injuries after 1 October 2001, the current form of section applies. For injuries suffered before 1 October 2001, the exception in sub-section (7A) did not apply.
That is, if the date of the applicant’s hearing loss was before 1 October 2001, he had to satisfy one regime. If it was after 1 October 2001, he had to satisfy the current regime.
Section 7(4) of the Act provides that for the purposes of the Act, except in the case of an injury causing death, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease, or aggravation. One way in which the applicant puts his case is to submit that the date identified by the deeming provision contained in s 7(4) is in 2013, when he first sought medical treatment for the condition.
The other alternative contended for by the applicant is that the hearing loss was suffered before the commencement of the Safety, Rehabilitation and Compensation Act, on 1 December 1988. If so, the applicant says, he may make his claim without regard to any threshold under the regime applicable before the current legislation came into force. That case would require consideration of the transitional provisions of the current Act, and to the extent to which s 124 of the current Act provides, of the predecessor statute, the Compensation (Commonwealth Government Employees) Act1971. See the discussion of the transitional provisions by Lockhart J in Behan v Australian Telecommunications Corporation [1990] FCA 502; (1990) 26 FCR 337 at [341].
As will appear, I have decided that the case sought to be made under the 1971 Act with s 124 of the current Act is unavailable on the evidence before me.
The respondent seeks to answer both contentions on the basis of a consent order made by the Tribunal on 16 August 2017, which is said to bind the Tribunal to hold that a different date of injury than either date contended for by the applicant applies. That consent order involved a decision to set aside a reviewable decision relating to the applicant and decided in substitution that the respondent was liable to pay compensation under s 14 of the Act for his bilateral sensorineural hearing loss. The hearing loss was described as materially contributed to by his employment with the Commonwealth, deemed to have been sustained on 13 May 1999.
The terms of that order suggest that s 7(4) of the Act was relied upon to fix the date in May 1999, and if that information was correct, the date which I have been given is incorrect.
Questions arising about the consent order require consideration of the decision of Perry J in Novosel v Comcare [2017] FCA 722, the normative nature of Tribunal decisions discussed in Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561 and authorities there referred to, and the recent decision of the Full Court of the Federal Court in Commonwealth of Australia v Snell [2019] FCAFC 57.
The applicant submitted that the consent order made by the Tribunal in 2017 was beyond power insofar as it purported to make a determination under s 7(4), because no such determination was made in the then reviewable decision. That challenge includes a submission that the power of the Tribunal to make a decision in the terms made in 2017 was absent. That raises a question of power to make an order under s 42C of the Administrative Appeals Tribunal Act1975 (Cth) (the AAT Act), which in turn raises a question of the powers of the Tribunal under s 43 of the AAT Act. If on review of a decision which denied that the applicant was entitled to compensation under s 14 it was open to the Tribunal to set aside the decision and decide for the first time the effect on the rights of the parties of s 7(4) of the Act, then the challenge to the power to make the consent orders will fail.
The Tribunal has power to exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. In a Social Security Case, notwithstanding the fact that the reviewable decision dealt only with whether a debt was owed, it is open to the Tribunal on review to consider also whether the debt should be waived, since that power was one vested in the decision-maker. See Secretary,Department of Social Security v Hodgson (1992) 37 FCR 32 at 39; 27 ALD 309 at [316] per Hill J. It was there held that if the purpose of the Tribunal is to review the original decision, it may exercise any power or discretion of the decision-maker when making orders on the review. The test, said His Honour, was one of relevance to the review rather than whether the exercise of powers and discretions is interdependent with the decision under review, in the sense of being necessarily involved in the decision under review. The Full Court of the Federal Court approved this reasoning in Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; (2005) 148 FCR 472 at [29] and [30]. There are limits to the power in s 43. For example, in a case where the reviewable decision related to the payment of taxi fares for treatment it was not open to the Tribunal to consider the more general question of entitlement to compensation: See Comcare v Burton [1998] FCA 1144; (1998) 50 ALD 846. Finn J made reference to Hospital Benefit Fund of Western Australia v the Minister of Health Housing and Community Services (1992) 39 FCR 225; 28 ALD 50 a case decided in the Full Court of the Federal Court (Wilcox, Burchett and French JJ) which held that this Tribunal was obliged to address the same question that was before the primary decision-maker. In turn, the Full Court relied for that purpose on a statement of Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 87 ALR 506.
High Court authority supports the same approach. In Shi v Migration Agents Registration Authority [2008] HCA 31, Kiefel J referred to the decision in Hospital Benefit Fund of Western Australia (supra) and said at [142]:
In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
Subsequently in Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 93 ALJR 629, Kiefel CJ, Keane and Nettle JJ said at [15] that:
Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
18. In the same case, Bell, Gageler, Gordon and Edelman JJ observed at [51] that:
…the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.
In the previous proceeding, Comcare had determined that no compensation was payable under s 14 of the Act. That decision was capable of being set aside under s 43 of the AAT Act, and could be made the subject of a consent order under s 42C of the Act. A determination that compensation is payable under s 14 is not normally accompanied by a determination of the sum involved, which is normally remitted to Comcare for determination. That is because s 14 deals with liability for compensation, not its quantum.
Section 7(4) of the Act is a provision which has a number of dimensions. It can go to quantum, showing the date from which weekly compensation or medical expenses are payable. It can go to whether the amendments to s 5B of the Act to require as a condition of liability that the contribution to a disease of the employment be substantially more than material, or, as the earlier form of legislation required, that it contributed materially to the disease. It can go to other questions.
The terms in which the decision of August 2017 is expressed may suggest that the reason for parties agreeing upon the selection of a date under s 7(4) was in order to make it clear that the test of materiality rather than the test of contribution to a significant degree applied, and therefore that the contribution made by the employment did not have to be substantially more than material. That is a fact which went to the determination of liability made in the decision. The evidence placed before me does not indicate how or why the parties came to agree upon the date specified as the deemed date of injury.
Ultimately, in my opinion, it does not matter whether the Tribunal can adopt a date fixed by the parties in their agreement, because in any event I have decided to act on the evidence before me on this review rather than to rely upon the agreed date specified in the consent order, for reasons expressed below.
I return to the questions referred to in [13] of these reasons.
In Novosel, Perry J considered several decisions made under s 34D of the AAT Act, not s 42C of the Act. The two sections are relevantly similar in requiring the Tribunal to be satisfied that a decision in the terms proposed or consistent with those terms would be within the powers of the Tribunal. They differ according to whether the consent order was made in the course of alternative dispute resolution processes or when the matter is before a tribunal member for hearing.
Perry J treated the various consent orders to be final resolutions on the merits of the matters which were the subject of the consent orders. At [103] Her Honour said:
Further and in any event, a consent decision made under s 34D of the AAT Act is no less final than a decision made on the merits following a hearing. As the respondent contends, “[i]t would be contrary to the intention of the legislature in enacting a range of alternative dispute resolution mechanisms to conclude that a consent decision is any less final than a decision that has been dealt with on the merits.” That Parliament so intended is supported by the fact that a consent decision can be made under s 34D(1) of the AAT Act only where neither party has notified the Tribunal that she or he wishes to withdraw from the agreement within a seven day “cooling off” period after agreement is reached and the Tribunal is satisfied that a decision giving effect to the agreement is within its powers. Nor as the respondent contends, did the applicant at any time seek judicial review of any of the earlier consent decisions, or to reinstate any of his withdrawn applications under s 42A(10) of the AAT Act.
Her Honour noted that, consistently with Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236 (Lockhart J with whom Black CJ and Gummow J agreed) and Australian Postal Corporation v Oudyn [2003] FCA 318 (Cooper J), neither the Tribunal nor the original decision-maker had power to make a decision that extended beyond the date of the decision and a determination under a section of the SRC Act operates only in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims under the section if circumstances under the section can be made out again in the future or if it can be brought under another applicable section of the Act. Nor can the determining authority bind itself to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act.

Perry J held that notwithstanding those authorities, particular claims might constitute an abuse of process, and open to be summarily dismissed on that basis.
In Azizi v Minister for Home Affairs [2018] AATA 2561, I considered the general question of the nature of past Tribunal decisions and applied earlier authorities establishing that such decisions were normative, both within the Tribunal and within the agency. In the absence of a finding that the earlier decision was affected by an error of fact or law, it is appropriate that the earlier decision be followed and applied in the Tribunal and in the agency in later cases. That rule is based upon the need for administrative decisions to have consistency, in the interests of good government. Azizi was relied upon by the respondent to suggest that I should now adopt the agreed date referred to in the 2017 consent orders.
I would hesitate to apply such a rule to a consent order. All that a Tribunal member decides when making a decision by consent is that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. A decision in those terms by the Tribunal does not involve a decision that the making of the orders is justified by any evidence or that the orders are correct either factually or legally except as to power to make the orders in an appropriate case.
In Commonwealth of Australia v Snell [2019] FCAFC 57, the Full Court of the Federal Court (Allsop CJ, Reeves and Derrington JJ) examined whether the doctrine of issue estoppel applied in the Tribunal, when determining a matter under the Seafarers Rehabilitation and Compensation Act1992. An earlier Tribunal decision of 2013 had found that the applicant had a solar induced skin disease to which his employment made a material contribution. The Tribunal declined to consider evidence tendered by the respondent which would have contradicted the finding made in the earlier Tribunal decision.
The relevant statutory context was that s 43(6) of the Administrative Appeals Tribunal Act provided that:
43 Tribunal’s decision on review
Tribunal’s decision taken to be decision of decision-maker
6A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
On the other hand, s 78 of the Seafarers Rehabilitation and Compensation Act1992 provided that:
78 Reconsiderations of determinations
7An employer may, on the employer’s own initiative, reconsider a determination made by the employer, whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
10A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer.
11A request for reconsideration of a determination must:
(a)set out the reasons for the request; and
(b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.
12On receipt of a request, the employer must for the purposes of this section:
(a)if the employer is a party to a collective agreement or a pre-reform certified agreement that relates to industry panels—arrange for an industry panel; or
(b)in any other case—arrange with Comcare for a Comcare officer;
to assist the employer in reconsidering the determination under subsection (5).
13After making arrangements under paragraph (4)(a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination.
14After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit.
15In this section:
industry panel means an industry panel established under an industrial agreement for the purposes of assisting the employer in reconsidering a determination under this section.
Section 78 permits a decision-maker to reconsider an earlier determination of entitlement to compensation. The Full Court held that, standing in the shoes of the decision-maker, the Tribunal was in the same position. Section 78 of the Seafarers Rehabilitation and Compensation Act prevailed over any principle of issue estoppel otherwise applicable in the Tribunal, and it must follow, the normative rule discussed in Azizi, and, if otherwise applicable, some of the principles established by Perry J in Novosel. The last mentioned matter clearly appears from the fact that earlier decision relied upon by the applicant to defeat the attempt to call evidence by the respondent was a consent decision made under s 42C of the AAT Act. It should be noted, however, that the Full Court expressed approval for what was said by Perry J about the circumstances in which it could be said that repeated applications to the AAT on the same subject matter could amount to an abuse of process. No such submission has been made before me in this case.
The respondent in Snell tendered evidence before the Tribunal which was assumed for the purposes of the appeal to be persuasive, significant and relevant, and was rejected by the Tribunal.
The Full Court recognised that its decision related not only to the Seafarers Rehabilitation and Compensation Act 1992 but also to the Safety, Rehabilitation and Compensation Act 1988, because the latter Act contained, in s 62, a section cognate with s 78 of the former Act. At [67] and [68] of Snell, the Full Court said:
67The authorities to which reference has been made suggest that the existence of s 78 (or its equivalent) has two distinctive impacts on the decision-making process. First, the decision-maker may expressly reconsider an earlier decision and make a different decision in its stead. Secondly, a decision-maker faced with a further claim from an employee, may make a decision on the new claim which is inconsistent with the first decision in which case it can be said the original decision is implicitly reconsidered. However, the effect of this approach is that the original decision remains operative to the extent that it is not eclipsed by the latter.
68The combined effect of s 43(1) of the AAT Act and s 78 is to allow the Tribunal, when reviewing a decision, to reconsider any earlier decision of the employer as well as any of its previous decisions which are deemed to be of the employer. That being so it would be inconsistent or lacking in coherency for the Tribunal to conclude that it was bound by an earlier determination. To do so would render the power of reconsideration inutile or, at least, substantially diminish its operative effect.
Those remarks equally affect the present case.
Part of the chain of reasoning in the case was that when the Tribunal reviews and sets aside a decision, its own decision is deemed by force of the Administrative Appeals Tribunal Act 1975 to be the decision of the original decision-maker.
It follows that what was decided in Novosel, like that decided in Azizi should be confined to cases where the legislation does not contain provisions such as s 62 of the Safety, Rehabilitation and Compensation Act or s 78 of the Seafarers Rehabilitation and Compensation Act.
Section 78 (and cognate provisions) confers a discretion to reconsider an earlier decision. The Full Court in Snell said at [76] that the later Tribunal can, in its discretion, give the earlier Tribunal decision such weight as is appropriate. The Court added that:
Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.
At the very least, there is a discretion by virtue of s 62 of the Safety, Rehabilitation and Compensation Act not to follow the earlier Tribunal decision made as a consent order under s 42C of the AAT Act, if it was within power.
The date of injury noted in the consent order was evidently an agreed date. The basis of the agreement between the parties as to that date is not before me. It was presumably open to both parties to lead that evidence if they chose to do so. In those circumstances, I will give little weight to the date formerly agreed between the parties, and will make findings based upon the evidence led before me by both parties. In choosing to follow that course, I reject the respondent’s submission that I ought to exercise my discretion to adopt the date agreed between the parties in 2017. I see no reason not to act on the probative evidence before me, especially when the formerly agreed date appears to have no support in the evidence which I must consider. In those circumstances, I do not need to establish whether or not the Tribunal had power to make to order insofar as to agreed deemed date of injury was concerned. Assuming the existence of a relevant power, my exercise of discretion would be no different.
The applicant seeks to put his case in the alternative. In the first place, he claims that his entitlement to a permanent impairment payment arose under the now repealed Compensation (Commonwealth Government Employees) Act1971 and that he is able to make such a claim at the present time by virtue of s 124 of the Safety, Rehabilitation and Compensation Act. In the alternative, he claims that he is entitled to a permanent impairment payment under the current Act, and on the basis that his deemed date of injury under s 7(4) of that Act is 2 September 2013, when he first sought treatment from National Hearing Care.
There are at least two problems about the first way in which the applicant seeks to put his case. The first is that under the 1971 Act, the equivalent of s 7(4) of the current Act was s 29, and s 29(g) provided that unless the contrary appeared the date of a loss to the employee of a kind referred to in ss 39 or 40 was the date of death, the date of the loss, the date of disfigurement, the date of the commencement of the incapacity or the date on which medical treatment was first obtained, whichever is the earlier. Section 39 dealt with a claim for partial loss of hearing. The relevant one of the dates mentioned in s 29(g) is the date of the loss, which appears to be the date on which the applicant first suffered a hearing impairment. That date is impossible to determine on the evidence before the Tribunal. The applicant selects the last day on which he was employed prior to the commencement of the 1988 Act, but section 29 does not direct attention to that date. Normally, in a claim for permanent impairment, the applicant would submit himself to a medical assessment, and seek to identify the date of the loss by reference to that assessment. That did not occur, and no particular date is now able to be identified as the date of the loss.
In the second place, even if the last possible date under the 1971 Act were able to be identified in some way, the means by which the applicant tries to assess it is in my view not a reliable method. Dr Scoppa said that, in effect, a reasonable method of assessing the extent of impairment at a date when no audiogram was conducted is to assume a linear progression of the impairment from the date of the first noisy employment. That may be the best one can do, but it seems to me that it is no more than a rough and ready calculation, with uncertain assumptions to justify it.
Therefore, I will reject the first alternative asserted by the applicant.
The second alternative does not suffer from either of the difficulties to which I have referred. As to the date of injury, s 7(4) of the current Act enables the assessment to be conducted as at 2 September 2013.
There were in fact three audiometric assessments of the applicant conducted about that time. It was explained in the evidence that each should be treated as relevant, because audiometric tests often or usually produce varied results when repeated. There is nothing to suggest that any of the three tests were not validly conducted, and as the applicant submitted, in those circumstances an average of the three results is an appropriate measure of the percentage loss.
According to the 1988 tables the average after allowing for a presbycusis correction was 6.2%. The 1988 tables are the most recent tables published by the National Acoustic Laboratory which is the research laboratory of Australia Hearing, so that in accordance with section 7.1 of the Approved Guide, recourse should be had to the 1988 tables.
The reviewable decision dated 16 January 2018 will therefore be set aside and the matter will be remitted to Comcare with a direction that the binaural hearing loss suffered by the applicant is 6.2%.
I also order that the respondent pay the costs incurred by the applicant of these proceedings pursuant to s 67 of the Act.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

..................................[sgd]...................................
Dated: 10 September 2019

Date(s) of hearing: 25 and 26 February 2019

Date final submissions received:

Counsel for the Applicant:

Solicitor for the Applicant:

Counsel for the Respondent:

Solicitor for the Applicant:

22 August 2019

Mr B G McManamey

Mr D Kim, Turner Freeman Lawyers

Mr M Snell

Ms S Embelton, Australian Government Solicitor