LAWRENCE O’KANE and COMCARE

Case [2013] AATA 722

[2013] AATA 722

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/2313 and 2013/0975

Re

LAWRENCE O’KANE

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER
Date 8 October 2013
Place Canberra

Matter 2013/0975 is affirmed, matter 2012/2313 is set aside and in substitution it is decided that the applicant is not entitled to compensation for the permanent impairment claim.

...........................[sgd]......................................

Professor RM Creyke, Senior Member

Catchwords

COMPENSATION – Commonwealth employees – claim for hearing loss and tinnitus – whether injury or disease – whether arose out of or in the course of employment – whether prejudiced by lack of contemporaneous records – whether injury notified as soon as practicable

Legislation

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation and Compensation Act 1988 section 4(1), 5A, 5B, 7(4), 24(7), 53, 124(3)

Cases

Abrahams v Comcare (2006) 93 ALD 147

Re Deveson and Comcare [1999] AATA 80

Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

Mendez v Telstra Corporation Ltd (1998) 147 FLR 394

Roncevich v Repatriation Commission (2005) 222 CLR 115

Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517

Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242

Secondary Materials

Marion Burgess Noise Levels in Special Needs Buses for ACTION Authority South Region (UNSW at ADFA, 2004)

Dr Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010)

National Occupational Health & Safety Commission National Standard for Occupational Noise (NOHSC: 1007 (2000))

Robson Environmental Occupational Noise Exposure Assessment: ACTION Buses (2010)

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

8 October 2013

  1. Mr Lawrence O’Kane, born 1946, arrived in Australia from Northern Ireland on 5 December 1963.

  2. He has two claims: for compensation for binaural hearing loss and for tinnitus (Matter 2013/0975); and for permanent impairment due to those conditions (Matter 2013/2313).

  3. The first claim was accepted on 10 November 2011, a decision revoked on review on 27 February 2013. Mr O’Kane sought further review by the Tribunal on 6 March 2013. In the second reviewable decision, dated 20 April 2012, Mr O’Kane was found to be entitled to compensation for permanent impairment of $35.11 for hearing loss, but not for tinnitus or non-economic loss in accordance with the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). He sought further review by the Tribunal on 7 June 2012.

  4. Concurrent evidence was provided by two medical specialists: Dr Tuan Pham, otolaryngologist, and Dr David Matison, consultant ear, nose and throat surgeon.

    Background

  5. The following facts have generally been agreed by the parties. Mr O’Kane worked as an apprentice carpenter, construction worker and trade’s assistant on the Snowy Mountains Hydroelectric Scheme before returning to Northern Ireland following the cessation of the Scheme. He returned to Canberra, ACT in 1972 and has since resided in Australia.

  6. Mr O’Kane commenced work as an ACTION bus driver in the ACT on or about 15 June 1974. No hearing test was conducted prior to his appointment. He received an involuntary redundancy package on 15 January 1996. However, he recommenced as…

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AGLC
LAWRENCE O’KANE and COMCARE [2013] AATA 722
Case
[2013] AATA 722
Decision Date

CaseChat Overview and Summary

The case of Lawrence O’Kane and Comcare involved the claim of Mr O’Kane for compensation for hearing loss and tinnitus. Mr O’Kane, a former employee of the Australian Capital Territory Government, alleged that his hearing loss and tinnitus arose out of his employment. The dispute was adjudicated by the Administrative Appeals Tribunal (AAT) under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The core issues before the court included determining the date of injury, the nature of the injuries as either an injury or a disease, the applicability of statutory exclusions, and the extent to which the employment contributed to the conditions.

The primary legal issues addressed by the court were whether Mr O’Kane's claim was time-barred, whether the claimed conditions were injuries or diseases within the meaning of the Safety, Rehabilitation and Compensation Act, and whether these conditions arose out of or in the course of his employment. Additionally, the court had to consider whether the claimed conditions were permanent and if they were attributable to his employment to a relevant degree. The court also examined whether the claim was excluded by specific provisions of the Act and if Mr O’Kane was entitled to compensation for permanent impairment and non-economic loss.

The Tribunal held that the date of injury for the hearing loss claim was 23 November 2010, the date Mr O’Kane first sought medical treatment for the claimed condition. The court found that Mr O’Kane's claims for hearing loss and tinnitus were not barred by the statutory requirement for timely notification to Comcare. It determined that his claimed conditions constituted injuries rather than diseases. The Tribunal also found that the claimed conditions arose out of or in the course of his employment, and they were not excluded by the Act. The impairments were deemed to be permanent, and Mr O’Kane was entitled to compensation for permanent impairment and non-economic loss.

In conclusion, the Tribunal determined that Mr O’Kane was entitled to compensation for his hearing loss and tinnitus, as they arose out of and in the course of his employment, and were not excluded by the statutory provisions. The court found the claim was not time-barred and that the injuries were permanent.

Orders

Orders of the court

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Background

Background to the litigation

Concurrent evidence was provided by two medical specialists: Dr Tuan Pham, otolaryngologist, and Dr David Matison, consultant ear, nose and throat surgeon.Background The following facts have generally been agreed by the parties. Mr O’Kane worked as an apprentice carpenter, construction worker and trade’s assistant on the Snowy Mountains Hydroelectric Scheme before returning to Northern Ireland following the cessation of the Scheme. He returned to Canberra, ACT in 1972 and has since resided in Australia. Mr O’Kane commenced work as an ACTION bus driver in the ACT on or about 15 June 1974. No hearing test was conducted prior to his appointment. He received an involuntary redundancy package on 15 January 1996. However, he recommenced as a casual part-time bus driver on 16 January 1996 and became permanent part-time on 16 April 1996. On 12 November 1985, Mr O’Kane suffered an injury when an insect became lodged in his left ear, causing an ear ache. His ear required washing out twice to dislodge the insect. Mr O’Kane was driving a bus at the time of the incident. The incident on 12 November 1985 and any pain it may have caused to Mr O’Kane’s left ear is unrelated to any claimed hearing loss or tinnitus in the current matter. In 1985-86 a tyre burst in the Kingston Bus Depot when Mr O’Kane was nearby. The parties agreed that whether this occurred or not it was not a cause or contributing factor to any hearing loss or tinnitus. On 7 April 1996, Mr O’Kane was ‘king hit’ at a local hotel in the ACT. The assault was to his left temple and he fell on his right side on a tiled floor, hitting the right side of his head on the floor. Dr Stephen Choong, consulted by Mr O’Kane on 16 April 1996, noted in a report that ‘The injury was followed by dizziness, a sore head and impaired hearing’. By 1 August 1996, Dr Choong reported Mr O’Kane as being fully recovered ‘except for the hearing loss’. Mr O’Kane made a claim for victim’s compensation in respect of this incident. The claim covered bruising, damage to teeth, and nerve damage to the right ear including hearing loss. On 24 July 1996 Mr O’Kane’s loss of hearing was assessed by Dr Hugh Williams, ear, nose and throat surgeon. Dr Williams found that:…the tympanic membranes of his ears appeared satisfactory and tuning fork tests along with audiometry indicated moderately severe right-sided sensorineural deafness which I believe is consistent with the injuries sustained which caused him a traumatic cochleitis at the time of the head injury which has left him with partial deafness in his right ear…. According to Tables put out by the National Acoustic Laboratories [NAL] Report of January 1988 I calculate that Mr O’Kane has a 15.1% loss of total hearing. (emphasis added)[1][1] Dr Matison’s evidence indicates this percentage figure was corrected for presbyacusis. On 3 June 2001, Mr O’Kane was assaulted outside the same ACT hotel as the assault in 1985. He suffered concussion and undertook a hearing test following the incident. He claimed the hospital told his doctor he should be referred for audiometry. However, the hospital claimed to have no record of this. In a statutory declaration, Mr O’Kane submitted that he had resulting ‘hearing loss’ and that his medical advisers said he ‘will require hearing aids’. He had sought criminal injuries compensation for the cost of hearing aids following the assault.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The following are the issues:·What is the date of injury?·Is Mr O’Kane’s claim for compensation excluded by section 53 of the SRC Act i.e. did Mr O’Kane notify Comcare of his claim ‘as soon as practicable’?·Is Mr O’Kane’s claimed condition of hearing loss an ‘injury (other than a disease)’, or a ‘disease’ for the purposes of the SRC Act?·Is Mr O’Kane’s claimed condition of tinnitus an ‘injury (other than a disease)’, or a ‘disease’ for the purposes of the SRC Act?·Did Mr O’Kane’s claimed conditions arise out or, or in the course of his employment with the Australian Capital Territory (ACT) Government? OR·Were Mr O’Kane’s claimed conditions contributed to, to the degree relevant, depending on the legislation at the date of injury, to his employment with the ACT Government?·Is Mr O’Kane’s claim for compensation for permanent impairment and non-economic loss for his two conditions excluded by operation of section 124(3) of the SRC Act?·Are the impairments arising from Mr O’Kane’s claimed conditions permanent?·Is Mr O’Kane entitled to compensation for permanent impairment and non-economic loss for his claimed conditions?ConsiderationDate of injury – hearing loss Mr O’Kane lodged a claim for hearing loss due to the insect in his ear on 14 November 1985. The claim was accepted and he was paid incapacity payments for two days off work and a small amount for medical expenses. It is accepted by both parties that the incident on 12 November 1985 and pain it may have caused to Mr O’Kane’s left ear is unrelated to his current claim. The current claim is for hearing loss due to ‘chronic exposure to bus engine noises, road noises, radio noises, passenger noises, hydraulic noises’ and is dated 14 December 2010. The claimed causes of the hearing loss are distinct from those in 1985. Although Mr O’Kane indicated in the workers’ compensation claim form that he first sought medical treatment for the injury in ‘1985’, the Tribunal finds that this date was entered in ignorance. 1985 is either the date of the insect in the ear incident, or of the possible burst tyre incident, both being events that parties have specifically agreed are not related to this claim. Accordingly 1985 is not the date for the loss of hearing claim. The Tribunal notes that the claim form was completed by Mr O’Kane’s then solicitor, not Mr O’Kane. The permanent impairment claim, dated confusingly 13 December 2010, that is, prior to the initial liability claim date, indicates a date of injury for the hearing loss claim of 23 November 2010, and that the claim was not related to an accepted injury. This supports a finding that the current claim is considered by Mr O’Kane to be a new claim, not related to the incidents in 1985. The date of injury is the date the applicant first sought medical treatment for the claimed condition, or when the condition first resulted in incapacity for work or impairment.[2] The 23 November 2010 was the date chosen by the Comcare delegate in his assessment of 10 November 2011 as the date on which Mr O’Kane first sought medical treatment, namely, the hearing assessment provided by Mr Andrew Holgate of Dylans Hearing Pty Ltd.[2] SRC Act section 7(4).