Kitabayashi v Qantas Airways Limited
[2023] NSWPIC 180
•24 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kitabayashi v Qantas Airways Limited [2023] NSWPIC 180 |
| APPLICANT: | Yoshiko Kitabayashi |
| RESPONDENT: | Qantas Airways Limited |
| Member: | Karen Garner |
| DATE OF DECISION: | 24 April 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether applicant sustained injury, being bilateral hearing loss by way of a gradual process in the course of her employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss; whether bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss as a result of a work injury; Held – the applicant sustained injury, being bilateral hearing loss by way of a gradual process in the course of her employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss; the respondent was the last employer to which the nature of the applicant’s hearing loss was due pursuant to section 17(c)(ii); bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss as a result of a work injury; respondent to pay the costs of and incidental to bilateral hearing aids pursuant to section 60. |
| determinations made: | The Commission determines: 1. The applicant sustained injury, being bilateral hearing loss, with a date of injury of 14 February 2021 (deemed), by way of a gradual process in the course of her employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (1987 Act). 2. The respondent was the last employer to which the nature of the applicant’s hearing loss was due pursuant to s 17(c)(ii) of the 1987 Act. 3. Bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss as a result of a work injury. The Commission orders: 4. The respondent to pay the costs of and incidental to bilateral hearing aids pursuant to a quotation of Broadway Audiology dated 8 December 2020, in accordance with s 60 of the1987 Act. |
STATEMENT OF REASONS
BACKGROUND
Yoshiko Kitabayashi (the applicant) is a 61-year-old woman who was employed by Qantas Airways Limited (the respondent) during the period from 10 September 1992 to 14 February 2021 in the position of long-haul flight attendant.
By Notice of Injury Form dated 30 April 2021, the applicant gave notice to the respondent that she suffered industrial deafness from her employment.
By letter of demand dated 10 May 2021, the applicant made a claim against the respondent for $6,509.42 in respect of hearing aids caused by industrial deafness pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
By notice dated 2 June 2021 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent advised that it declined liability for the applicant’s claim on the grounds that it did not accept that hearing aids are reasonably necessary as a result of industrial deafness pursuant to s 60 of the 1987 Act.
By notice dated 19 January 2022 issued pursuant to s 287A of the 1998 Act, the respondent advised that it maintained its decision to decline liability.
By letter dated 15 June 2022, the applicant requested a review of that decision.
By a notice dated 24 August 2022 issued pursuant to s 287A of the 1998 Act, the respondent stated that it maintained its decision to decline liability on the grounds that:
(a) it did not accept that the applicant sustained a hearing loss injury in the course of her employment with the respondent in accordance with ss 4 and 17 of the 1987 Act, and
(b) it did not accept that hearing aids are a reasonably necessary medical treatment as a result of industrial deafness under s 60 of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 10 February 2023. The applicant seeks compensation pursuant to s 60 of the 1987 Act in the amount of $6,509.42 for hearing aids in respect of hearing loss ith a date of injury of 14 February 2021.
PROCEDURE BEFORE THE COMMISSION
At a conciliation/arbitration hearing conducted by MS Teams on 5 April 2023, Mr Bill Carney, counsel, appeared on behalf of the applicant, instructed by Kris Narsimullu, solicitor of LHD Lawyers, together with the applicant. Mr Fraser Doak, counsel, appeared on behalf of the respondent, instructed by Ashray Vahay, solicitor of Hall & Wilcox Lawyers, together with Patricia Camelo De Souza of the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury in the nature of industrial deafness pursuant to ss 4 and 17 of the 1987 Act, and
(b) whether the treatment is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply to ARD and attached documents,
(c) insurer’s Application to Admit Late Documents (AALD) dated 21 February 2023 and attachments (admitted into evidence by consent), and
(d) applicant’s AALD dated 3 April 2023 and attachments (admitted into evidence by consent).
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant’s evidence
The applicant gave evidence by way of a statement dated 15 June 2022.
The applicant stated that she worked for the respondent in the position of long-haul flight attendant from 10 September 1992 to 14 February 2021. A hearing test that she was required to undertake as a precondition of her employment, did not indicate hearing loss.
The applicant stated that during her employment with the respondent, she worked on various aircraft, including Boeing 747 and Airbus A330. Many airports that she worked at were not equipped with aerobridges. She was required to walk across the airport apron and to wait for extended periods of time on the apron to embark and disembark aircraft and transport buses. She was also required to wait for 30 minutes for embarking passengers in open aircraft which were exposed to noise. During those times, she was exposed to high levels of noise from jet engines of aircraft (which were taxiing past, taking off and landing) and other noise, including noise of compressors and tugs.
The applicant stated that she was also exposed to constant noise during long-haul flights of around 14 hours. In the economy cabin, the applicant was exposed to particularly loud noise from aircraft engines and cabin toilets flushing. She was exposed to loud engine noise when she was required to be seated in the economy cabin during aircraft ascent and descent. She continued to be exposed to loud noise when she rested in the crew rest bunks at the rear of the aircraft, below the vertical stabiliser.
The applicant stated that she was not provided with noise protection during her employment. She did use ear plugs in the crew rest bunks however they were ineffective in significantly reducing the noise that she was exposed to.
The applicant has noticed hearing difficulty in recent years.
Audiology evidence
Maree Patikas, Specsavers Audiology
A report dated 31 August 2020 was issued by Ms Patikas of Specsavers Audiology in respect of a hearing assessment of the applicant conducted that day. It noted that the applicant had a history of noise exposure whilst working as a flight attendant and that there was no history of ear surgery, ear treatment, rifle shooting or significant noise exposure outside of employment. The results of the assessment were as follows:
“RESULTS
Otoscopoy revealed clear and intact tympanic membranes bilaterally.
Tympanometry showed type A tympanograms in both ears, indicative of normal tympanometric compliance and pressure.
Audiometric testing revealed a sensorineural hearing loss bilaterally.
Speech recognition testing was consistent with the audiogram and showed good speech discrimination at conversational levels (40dB). Yoshiko was cooperative and their responses were consistent.
Using the NAL Report 118, the overall binaural hearing loss is 16.7%. Please see the NAL Binaural Percentage Loss of Hearing Table attached.
CONCLUSIONS/RECOMMENDATIONS
Yoshiko has significant difficulties hearing speech across a distance, in groups, from the television and in the presence of background noise.
Given the degree of loss and reported hearing difficulties, hearing aids have been recommended in both ears...”
Audiogram results were attached to the report. A Binaural Percentage Loss of Hearing Table set out the results of the audiogram as follows:
Frequency (Hz)
HTL Left (dB)
HTL Right (dB)
PLH Left (%)
PLH Right (%)
PLH Binaural (%)
500
30
25
2.8
1.4
2.0
1000
30
35
3.5
5.7
4.2
1500
35
35
4.5
4.5
4.5
2000
35
35
3.4
3.4
3.4
3000
35
35
2.3
2.3
2.3
4000
25
25
0.3
0.3
0.3
6000
8000
Overall PLH (%)
16.8
17.6
16.7
Broadway Audiology quote
A quote dated 8 December 2020 issued by Broadway Audiology stated a total amount of $6,509.42 in respect of the provision of hearing aids to the applicant.
Independent medical evidence
Dr Frank Elsworth, ear, nose and throat specialist
Dr Elsworth provided an independent medical opinion at the request of the applicant.
In a report dated 9 April 2021, Dr Elsworth noted the applicant’s history of work with the respondent in a noisy environment without ear protection. He noted that the applicant had no other relevant medical history. Dr Elsworth stated:
“EXAMINATION
On examination, Mrs Kitabayashi’s ears were totally normal in appearance. There was no evidence of ear disease. Her nose and oral cavity were also normal.
An audiogram was carried out on 9th April 2021 in soundproof circumstances using a calibrated audiometer. The audiogram revealed a mild bilateral sensory deafness.
Percentage loss of hearing based on NLA Report no 118:
·Percentage loss of hearing left 2.6%
·Percentage loss of hearing right 2.6%
·Percentage loss of hearing binaural 2.6%
It is my opinion that the hearing loss as stated is the end result of excessive noise exposure throughout working life with QANTAS. Hearing aids will be required with old age.”
Audiogram results were attached to the report. A Binaural Percentage Loss of Hearing Table set out the results of the audiogram as follows:
Frequency (Hz)
HTL Left (dB)
HTL Right (dB)
PLH Left (%)
PLH Right (%)
PLH Binaural (%)
500
10
10
0.0
0.0
0.0
1000
20
20
0.8
0.8
0.8
1500
5
5
0.0
0.0
0.0
2000
25
25
1.1
1.1
1.1
3000
25
25
0.7
0.7
0.7
4000
10
10
0.0
0.0
0.0
6000
8000
Overall PLH (%)
2.6
2.6
2.6
In a report dated 18 November 2021, Dr Elsworth stated:
“Further to my report dated 9th April 2021, it is my opinion that as a consequence of the noise induced hearing loss developed during the course of her working life with Qantas, it is reasonably necessary now and in the future that Mrs Kitabayashi requires bilateral digital hearing aids.
Percentage loss of hearing based on NLA Report no 118:
·Percentage loss of hearing left 11.7%
·Percentage loss of hearing right 15.8%
·Percentage loss of hearing binaural 12.7%
This equates to binaural % hearing loss of 7%.”
In a report dated 28 May 2022, Dr Elsworth stated:
“Thank you for your request for confirmation of the degree of hearing loss with Mrs Kitabayashi. I do apologise, my report clearly is inconsistent. I have checked all the figures today for her and the correct figures are:
Percentage loss of hearing based on NLA Report no 118:
·Percentage loss of hearing left 11.7%
·Percentage loss of hearing right 15.8%
·Percentage loss of hearing binaural 12.7%
Which is consistent with 7% WPI.”
In a report dated 31 March 2023, Dr Elsworth commented on the reports of Dr Howison dated 29 July 2022 and 20 March 2023. He stated:
“1. Dr Howison’s comment is correct in that people with noise induced hearing loss normally do have a shape of audiogram different to Mrs Kitabayashi’s audiogram that was carried out on 9 April 2021 on which my report is based. There is on that audiogram some minor difference in hearing levels between the left and right ears at particular frequencies, however I do not believe that conclusion excludes noise induced injury to her ears.
2. Working as cabin crew, QANTAS employees were exposed to very substantial noise levels at work whilst (1) in the cabin crew of the plane, (2) resting in the crew quarters in the tail of the plane and (3) while attending to their duties within the galley of the plane where, I understand, there was considerable noise exposure from appliances as well as background engine noise.
As well, QANTAS cabin crew used to wait on the tarmac for a considerable period of time after the completion of a flight waiting to be picked up by a bus. I am informed by Ms Kitabayashi, as well as many other QANTAS cabin crew, that while they were waiting for the bus they were exposed, without protection, to the noise of planes both landing and taking off.
3. In general, noise reduced hearing loss is somewhat near symmetrical in in general does involve the high frequencies more than the low frequencies. This is not the case in Ms Kitabayashi’s audiogram but that does not exclude noise induced injury during her working life of 30 years of noise exposure whilst a QANTAS employee.”
Dr Howison further stated:
“Ms Kitabayashi was assessed on one day only from one audiogram. The reason for the difference, in my two reports was (1) different interpretation of the same audiogram (2) whilst speaking to Ms Kitabayshi.”
Dr Ken Howison, ear, nose and throat surgeon
Dr Howison provided an independent medical opinion at the request of the insurer.
By report dated 29 July 2022, Dr Howison noted the applicant’s work history and that she had no other relevant medical history. He stated that he considered Qantas to be a noisy employer and that the applicant had been exposed to significant noise.
Dr Howison noted that on examination both tympanic membranes are normal and intact, and audiometry shows a bilateral sensori-neural hearing loss more marked in the mid-frequencies.
After considering results of audiometry conducted by him, Dr Howison diagnosed “bilateral sensori hearing loss of unknown origin”. However, he opined that the applicant “does not have industrial deafness” or noise induced hearing loss. In that regard, Dr Howison stated:
“Noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first and only with further noise damage are the lower frequencies affected progressively gradually from the higher frequencies to lower frequencies; that is to say 1500 HZ should be affected less than 2000 Hz and 1000 Hz less than 1500 Hz and so on. The progression of hearing loss in the low frequencies needs to be clinically significant if this damage is from exposure to loud noise. Continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to have a rest period.
After consideration of the cumulative noise emission levels to which Mrs Kitabayashi has been exposed and the shape of the audiogram I would consider that Mrs Kitabayashi does not have industrial deafness.”
In relation to Dr Elsworth’s assessment of 12.7% binaural hearing loss, Dr Howison stated:
“Dr Elsworth’s audiogram shows that the loss of hearing at 4000 Hz in the right ear is less than at 2000 Hz and this is not consistent with noise induced hearing loss. My audiogram shows that the loss of hearing at 2000, 3000 and 4000 Hz in the left ear is the same and this is also not consistent with noise induced hearing loss.”
Dr Howison was unable to provide any explanation for the difference of 2.6% binaural hearing loss reported in Dr Elsworth’s report dated 9 April 2021 and 12.7% binaural hearing loss reported in Dr Elsworth’s report dated 18 November 2021.
Dr Howison stated that the “only way of improving Mrs Kitabayashi’s hearing loss would be with the use of hearing aids” however in his opinion she does not require hearing aids as a result of her employment with the respondent because “she does not have industrial deafness”.
In a report dated 19 August 2022, Dr Howison set out results of the audiogram that he conducted and his calculations of binaural hearing loss based on the audiogram (in accord with the 1988 National Acoustic Laboratory Tables) as follows:
Assessment of Total Binaural Hearing Impairment
Binaural hearing impairment (section 9.9) = 10.1%
Less presbyacusis correction (section 9.10) = 0.0%
Add loading for severe tinnitus (section 9.11) = 0.0%
Total binaural hearing impairment = 10.1%
Frequency
(Hz)
Left (dB HL)
Right (dB HL)
Total Binaural Hearing Impairment (%TBHI)
500
30
25
2.0
1000
25
30
2.5
1500
30
35
3.4
2000
25
35
1.9
3000
20
20
0.3
4000
20
15
0.0
In a report dated 20 March 2023, Dr Howison commented on the ‘shape of the audiogram’:
“Noise induces hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequencies. On the audiogram I carried out Mr Kitabayashi’s loss of hearing at 4000 Hz in the right ear was less than at 3000 Hz and the loss at 3000 Hz was less than at 2000 Hz. This is not consistent with noise induced hearing loss. The loss of hearing in the left ear at 4000 Hz and 3000 Hz was the same and the loss of hearing at 3000 Hz in the left ear was less than at 2000 Hz and this is not consistent with noise induced hearing [loss].”
Dr Howison stated that, having regard to the noise that the applicant was exposed to during her employment with the respondent together with the shape of the audiogram, he concluded that she does not have industrial deafness.
Dr Howison noted that Dr Elsworth’s report dated 9 April 2021 showed that after the applicant had ceased employment, she had binaural hearing loss of 2.6%. He noted that a second assessment on 18 November 2021 showed a binaural hearing loss of 12.7%. He stated that “noise induced hearing loss does not progress once one has left the source of noise, and this is a further reason why I do not consider that [the applicant] has noise induced hearing loss”.
Submissions
Counsel made detailed oral submissions which were recorded on transcript. A copy of the recording and transcript will be made available on request.
Applicant’s submissions
Mr Carney’s submissions on behalf of the applicant may be summarised as follows:
(a) the Commission should accept the applicant’s evidence that the respondent was a noisy employer and that the applicant was subjected to consistent loud noise over a period of approximately 30 years in her position of long-haul flight attendant with the respondent;
(b) the Commission should accept that there is no evidence that the applicant was subjected to other loud noise nor any family history or other medical cause of hearing loss and, accordingly, the applicant’s employment with the respondent is the only potential source of hearing damage identified in the evidence;
(c) the evidence is compelling, and the Commission should accept, that the applicant has bilateral sensory hearing loss and requires hearing aids to improve her hearing;
(d) the Commission should prefer and accept the evidence of Dr Elsworth that the applicant’s hearing loss was caused by exposure to loud noise over the course of her employment with the respondent, notwithstanding that her audiogram results are not typical of noise-induced hearing loss. Dr Elsworth explained that applicant’s atypical audiogram results do not exclude noise induced hearing loss. Further, Dr Howison conceded that all frequencies are affected over time. The applicant’s audiogram results are consistent with the very lengthy period of noise exposure to which she was subjected over the course of her employment with the respondent;
(e) on the basis of the evidence, the Commission should find that the applicant sustained an injury in the nature of industrial deafness pursuant to ss 4 and 17 of the 1987 Act, and
(f) further, the Commission should find that hearing aids are reasonably necessary as a result of the industrial deafness injury as required by s 60 of the 1987 Act.
Respondent’s submissions
Mr Doak’s submissions on behalf of the respondent may be summarised as follows:
(a) the respondent accepts that the applicant was employed by the respondent in the position of long-haul flight attendant for almost 30 years, from 10 September 1992 to 14 February 2021;
(b) the respondent also accepts that there is no evidence that the respondent was not the last noisy employer of the applicant pursuant to s 17(1)(c) of the 1987 Act;
(c) the Commission should prefer and accept the evidence of Dr Howison that the applicant has bilateral sensori hearing loss of unknown origin. Dr Howison’s evidence is compelling because he explains that the applicant’s audiogram results are not consistent with noise-induced hearing loss which affects the higher frequencies first and then progressively affects the lower frequencies;
(d) further, the nature of the noise exposure to which the applicant was subjected during the course of her employment was not consistent with noise-induced hearing loss because it was intermittent and it was affected by various factors from time to time, such as how long the applicant was waiting on the airport apron, the proximity of other aircraft and what power source they were using;
(e) Dr Elsworth’s evidence should not be accepted because his assessment of hearing loss is inconsistent and unreliable. Further, Dr Elsworth did not deal with the inconsistent nature of the noise exposure to which the applicant was subjected during the course of her employment with the respondent;
(f) the applicant has not satisfied its onus to prove that the applicant’s employment materially contributed to her hearing loss;
(g) on the basis of the evidence, the Commission should find that the requirements of ss 4, 17 and 60 of the 1987 Act are not satisfied, and
(h) the Commission should make an award for the respondent.
Applicant’s submissions in reply
Mr Carney’s submissions in reply on behalf of the applicant may be summarised as follows:
(a) Dr Howison’s report did not refer to variable noise levels;
(b) the applicant’s evidence is that there was extensive and constant noise when she was in the aircraft for lengthy periods, not just when she was on the airport apron;
(c) Dr Howison’s evidence is that he obtained the same audiogram results that Dr Elsworth obtained;
(d) the medical experts both accept that the applicant requires hearing aids, and
(e) having regard to the evidence, the Commission should make an award in favour of the applicant.
FINDINGS AND REASONS
The law
Section 4 of the 1987 Act states:
“4 Definition of ‘injury’
In this Act–
injury–
(a)means personal injury arising out of or in the course of employment,
(b)includes a disease injury, which means–
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 17 of the 1987 Act states:
“17 Loss of hearing – special provisions
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect–
(a)for the purposes of this Act, the injury shall be deemed to have happened–
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due – at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury – on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c)compensation is payable by–
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury – that employer, or
(ii)where the worker was not so employed – the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e)in paragraph (d), the relevant period means–
(i)where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing) – in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii)where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury – in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii)where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury – in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
(f)where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2) Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
Section 60(1) of the 1987 Act states:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Injury
Whilst all the medical evidence indicates that the applicant suffers hearing loss, there is some inconsistency regarding the degree and cause of the applicant’s hearing loss.
Ms Patikas conducted one hearing assessment, on 31 August 2020. Ms Patikas assessed the applicant to have left ear hearing loss of 16.8%, right ear hearing loss of 17.6% and an overall binaural sensorineural hearing loss of 16.7%.
The applicant’s independent medical expert, Dr Elsworth, conducted one hearing assessment on 9 April 2021. In a report dated 9 April 2021, Dr Elsworth stated that he assessed the applicant to have left hearing loss of 2.6%, right hearing loss of 2.6 % and binaural hearing loss of 2.6%. However, in a later report dated 18 November 2021, Dr Elsworth stated that he assessed the applicant to have left hearing loss of 11.7%, right hearing loss of 15.8% and binaural hearing loss of 12.7%, which equates to 7% whole person impairment (WPI). In a report dated 28 May 2022, Dr Elsworth confirmed the latter assessment. In a report dated 31 March 2023, Dr Elsworth explained that he assessed the applicant on only one audiogram. Further, Dr Elsworth explained that the difference between his reported assessments was due to “different interpretation of the same audiogram” and “whilst speaking to Ms Kitabayashi it was very clear that she does have a degree of hearing loss consistent with the audiogram of 9 April 2021 on which my report is based”. I accept that Dr Elsworth explained the inconsistency in his reports and that Dr Elsworth’s actual assessment of hearing loss is that stated in his latter reports.
The respondent’s independent medical expert, Dr Howison, conducted one hearing assessment on 22 July 2022. In a report dated 29 July 2022, Dr Howison stated that he assessed a bilateral sensorineural hearing loss. He noted that the hearing loss was irregular at different frequencies and did not progressively deteriorate more towards the higher frequencies. In a report dated 19 August 2022, Dr Howison stated that he assessed the applicant to have a binaural hearing impairment of 10.1%.
Relevantly, Dr Howison stated that his audiogram was “very similar” to the audiogram carried out by Dr Elsworth.
Ms Patikas did not express an opinion on the cause of the hearing loss, but noted the applicant’s noisy employment with the respondent and that there was no other relevant history or evidence of other causal factors.
Dr Howison opined that the applicant’s hearing loss was of “unknown origin” and was not a result of her employment with the respondent. The basis for Dr Howison’s opinion as to causation was that the applicant’s audiogram results which showed that loss of hearing in the right ear at 4000 Hz is less than at 3000 Hz and the loss at 300 Hz was less than the loss at 2000 Hz. Further, the loss of hearing in the left ear at 4000Hz and 3000 Hz was the same and the loss at 3000 Hz was less than at 2000 Hz. Dr Howison explained that those results were not consistent with noise induced hearing loss which was typically bilaterally symmetrical and progressive from the low to the high frequencies. Dr Howison also considered that the cumulative noise emission levels to which the applicant was exposed during her employment with the respondent were not of such a nature to cause industrial deafness and he stated that continuous noise exposure over the years is more damaging than interrupted exposure to noise. Although he did not state it explicitly, Dr Howison’s opinion as to causation appears to be premised on his understanding that the applicant’s noise exposure during her employment with the respondent was not constant rather than continuous. Further, Dr Howison’s opinion was also based on his understanding that the applicant’s hearing loss had deteriorated over time since she left employment with the respondent, which is not consistent with noise-induced hearing loss.
Dr Elsworth opined that the applicant’s hearing loss was caused by her employment with the respondent, which he noted from the applicant’s evidence was a noisy environment. Dr Elsworth accepted that noise induced hearing loss does not become progressively worse following completion of employment at a site of noise exposure. However, he denied that had occurred in the respondent’s case. Considering the evidence as a whole, I do not accept that the applicant’s hearing loss significantly deteriorated over time after she ceased employment with the respondent.
Further, Dr Elsworth accepted that noise-induced hearing loss was generally somewhat near symmetrical in both ears and generally involves the high frequencies more than the low frequencies. He also accepted that the applicant’s hearing loss at the various frequencies was atypical of noise-induced hearing loss. However, he opined that the applicant’s hearing loss was noise-induced notwithstanding it did not have that typical presentation.
It is not in dispute that the applicant was employed by the respondent in the role of long-haul flight attendant for approximately 30 years.
The applicant has given evidence of extensive loud noise exposure during her employment over a period of approximately 30 years, which was largely constant over her lengthy shifts and even included rest periods on aircraft. There is no evidence which contradicts the applicant’s evidence in relation to the noisy conditions to which she was subjected during the course of her employment with the respondent. I accept the applicant’s evidence in relation to noise exposure during her employment with the respondent, which I consider to be reasonable in the circumstances.
I do not accept, Dr Howison’s apparent premise that the applicant’s noise exposure during her employment with the respondent was not constant rather than continuous because it is inconsistent with the applicant’s evidence. Further, I find that premise to be illogical given the applicant’s description of largely constant and enduring noise of aircraft and other appliances over the lengthy duration of her shifts both on and off aircraft, even whilst she was resting, over approximately three decades.
It is significant that there is no evidence of any other relevant history or significant causal factor relevant to the applicant’s hearing loss outside of the applicant’s employment with the respondent.
Considering the evidence as a whole, I prefer and accept the evidence of Dr Elsworth because I consider that it provides a sensible and likely explanation for the applicant’s hearing loss notwithstanding that certain elements of her hearing loss presentation were atypical of noise-induced hearing loss.
Accordingly, I find that the applicant sustained bilateral hearing loss by way of a gradual process in the course of her employment with the respondent and I also find that the applicant’s employment with the respondent was the main contributing factor to the applicant’s hearing loss pursuant to s 4(b)(i) of the 1987 Act. Further, I find that the respondent was the last employer to which the nature of the applicant’s hearing was due pursuant to s 17(c)(ii) of the 1987 Act.
Is the treatment medical or related treatment?
The applicant seeks compensation for the cost of bilateral hearing aids.
The respondent does not dispute, and I am satisfied, that this falls within the definition of medical or related treatment (other than domestic assistance) within the meaning of s 60(1)(a) of the 1987 Act.
Is the treatment reasonably necessary?
In Diab v NRMA Ltd,[1] Roche DP, referring to the decision in Rose v Health Commission (NSW),[2] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[3]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[3] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The applicant’s evidence is that she requires hearing aids to improve her diagnosed bilateral hearing loss.
Ms Patikas noted that the applicant has significant difficulties hearing speech across a distance, in groups, from the television and in the presence of background noise. Having regard to the applicant’s assessed degree of hearing loss assessed and reported hearing difficulties, Ms Patikas recommended bilateral hearing aids as appropriate.
Dr Elsworth stated that it is reasonably necessary that the applicant requires bilateral hearing aids now and into the future as a result of her noise induced hearing loss developed during her work with the respondent.
Dr Howison stated that hearing aids were the “only way of improving” the applicant’s bilateral hearing loss.
The medical evidence is consistent that hearing aids are likely to be effective and are appropriate to address the applicant’s bilateral hearing loss.
Having regard to the consistent evidence in that regard, I find that bilateral hearing aids are likely to be effective and are appropriate to address the applicant’s bilateral hearing loss.
No issue has been raised in relation to the cost of bilateral hearing aids which Broadway Audiology quoted to be $6,509.42. I consider that cost to be reasonable in the circumstances.
Having regard to the above evidence, I am satisfied that cost of the treatment estimated by Broadway Audiology is appropriate to address the applicant’s bilateral hearing loss.
There is no evidence of any alternative treatment which is likely to be effective to address the applicant’s bilateral hearing loss.
On that basis, I accept that there is no reasonable alternative treatment which is likely to be effective to address the applicant’s bilateral hearing loss.
Having regard to all the matters set out above, I am satisfied and find that bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss.
Does the need for the treatment arise as a result of a work injury?
A commonsense evaluation of the causal chain is required. In Kooragang Cement Pty Ltd v Bates,[4] Kirby P (as His Honour then was) stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[5]
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[5] (1994) 10 NSWCCR 796 at [810].
In Murphy v Allity Management Services Pty Ltd[6] Roche DP stated:
“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)”.
[6] [2015] NSWWCCPD 49 at [57].
On the basis of the evidence and my findings set out above, I am satisfied that the necessary causal relationship exists between the applicant’s injury, being bilateral hearing loss caused by the noisy work environment during her employment with the respondent, and the need for bilateral hearing aids. I am satisfied that the applicant’s work with the respondent materially contributed to the need for bilateral hearing aids.
Accordingly, I find that the need for the bilateral hearing aids arose as a result of a work injury.
Having regard to the considerations identified in Diab v NRMA Ltd[7] and Rose v Health Commission (NSW),[8] I find that that bilateral hearing aids is, therefore, reasonably necessary as a result of injury pursuant to s 4(b)(i) of the 1987 Act.
[7] [2014] NSWWCCPD 72.
[8] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
SUMMARY
In summary, the following determinations are made:
(a) the applicant sustained injury, being bilateral hearing loss, with a date of injury of 14 February 2021 (deemed), by way of a gradual process in the course of her employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss pursuant to s 4(b)(i) of the 1987 Act;
(b) the respondent was the last employer to which the nature of the applicant’s hearing loss was due pursuant to s 17(c)(ii) of the 1987 Act, and
(c) bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss as a result of a work injury.
Accordingly, it is appropriate to make the following orders:
(a) the respondent to pay the costs of and incidental to bilateral hearing aids pursuant to a quotation of Broadway Audiology dated 8 December 2020, in accordance with s 60 of the 1987 Act.
0
2
0