LAWRENCE O’KANE and COMCARE
[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
Mr Lawrence O’Kane, born 1946, arrived in Australia from Northern Ireland on 5 December 1963.
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).
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.
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.
On 8 August 2004, Mr O’Kane ceased driving ACTION buses.
On 8 May 2008, Mr O’Kane underwent a hearing test which indicated a binaural hearing loss of 33.9 per cent when corrected for presbyacusis (the effects of ageing).
On 2 June 2008, Mr O’Kane underwent a further hearing test which indicated a binaural hearing loss of 15.5 per cent when corrected for presbyacusis.
On or about 16 December 2010, Mr O’Kane attended solicitors who lodged a claim for permanent impairment with Comcare in respect of hearing loss and tinnitus.
On 31 October 2011 Dr Matison assessed Mr O’Kane to have a 41.3 per cent binaural hearing loss (corrected for presbyacusis).
On 10 November 2011, Comcare accepted liability for Mr O’Kane’s hearing loss and tinnitus with a date of injury of 23 November 2010.
On 3 January 2012, Mr O’Kane received confirmation from Comcare that it would accept liability for the cost of hearing aids.
On 13 February 2012, Comcare decided that Mr O’Kane was not entitled to permanent impairment in respect of his hearing loss and tinnitus.
On 20 April 2012, Comcare set aside the decision of 13 February 2012 and found that Mr O’Kane was entitled to a permanent impairment assessment under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) in respect of his hearing loss of 0.0095 per cent, amounting to an entitlement to $35.11,and nothing in respect of his tinnitus.
On 12 July 2012, Mr O’Kane underwent a hearing test indicating a binaural hearing loss of 50.6 per cent (corrected for presbyacusis).
On 14 August 2012, Dr Pham produced a report stating Mr O’Kane’s hearing loss, corrected for presbyacusis, as at 23 November 2010 was 39.8 per cent binaural hearing loss and binaural hearing loss attributable to noise exposure was 17.4 per cent.
On 1 November 2012, Dr Matison provided a further report to Comcare. Dr Matison expressed the view that Mr O’Kane’s hearing loss was unlikely to be attributable to the assaults.
In a supplementary report dated 21 November 2012, Dr Matison modified his views and indicated that the assault in 1996 may have contributed to the hearing loss in the right ear but could not comment as to the extent.
In a further supplementary report dated 29 December 2011, Dr Matison reported that in his opinion, 0.6 per cent loss of hearing by Mr O’Kane was due to acoustic trauma from the burst tyre, the remaining 40.7 per cent hearing was ‘most likely due to a familial form of deafness unconnected with any employment factor’. His conclusion was ‘based on the audiogram pattern, which is not typical of noise trauma’. So although he considered that Mr O’Kane may have been exposed to excessive noise in the early years of his career with ACTION, in his opinion, bus driving was not the predominant cause of his hearing loss.
In a reviewable decision dated 27 February 2013, Comcare revoked the decision of 10 November 2011 and denied Mr O’Kane’s claim for ‘sensorineural hearing loss’ and ‘tinnitus’.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Relevant provisions are section 4(1), the definitions provision; section 5A which defines what is a compensable ‘injury’ for the purposes of the Act; section 5B which defines one form of compensable injury as a work-related ‘disease’; section 7(4) which describes the date of injury; and section 53 which requires notification of an injury ‘as soon as practicable after the employee becomes aware of the injury’.
Issues
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?
Consideration
Date 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).
However, there is evidence that Mr O’Kane underwent two hearing assessments in 2008: the first by Australian Hearing Pty Ltd took place on 8 May 2008; the second by the Audio Clinic was reported on 2 June 2008. The second test followed a referral by Dr Vinh Duc Lieu, Mr O’Kane’s general practitioner. There is no evidence as to who referred Mr O’Kane for the first test.
There is evidence that Mr O’Kane was contacted by ACTION in 2008 about his hearing loss because of a number of hearing loss claims by ACTION bus drivers. The ACTION contact person advised Mr O’Kane to see his union. This may have triggered the visit for medical assessment or it may have been suggested to him by Dr Lieu following a consultation.
At the hearing Mr O’Kane said he could not recall why he had seen the doctor about his hearing. Although he said the contact was not due to the ACTION approach to him, the Tribunal infers that was most likely the reason, in the absence of alternative explanations, and in light of Mr O’Kane’s being advised by ACTION that his employment with ACTION may have contributed to his hearing loss. The Tribunal also notes that Mr O’Kane said his hearing deteriorated following cessation of work with ACTION in 2004, so this too may have been an incentive. Accordingly the Tribunal is satisfied that Mr O’Kane first sought an audiogram for hearing loss due to noise loss from bus driving in May/June 2008 and that is the date of injury.
Date of injury – Tinnitus
Mr O’Kane said at the hearing he has had the condition since the mid-1990s and dates it to the assault in 1996. At the hearing he described the condition as ‘crackling, like rain’ and said it was continuous and had been the same since 1996, but is now worse. Dr Williams makes no mention of tinnitus in his report of 1996. The earliest report of tinnitus is in the Australian Hearing Pty Ltd report on 8 May 2008. There is no mention of ‘ringing ears’ in the hearing assessment report dated 4 November 2010. Dr Pham in his report of 14 August 2012 noted the history of the burst tyre and Mr O’Kane saying he dated the tinnitus to the incident in 1985. Dr Matison, in his report of 1 November 2012, refers also to Mr O’Kane’s history of the relationship between tinnitus and the burst tyre. At the same time, Dr Matison notes that the records of tinnitus are confusing given that the Audio Clinic reports indicated that ‘tinnitus was either absent, intermittent or mild’.
In Mr O’Kane’s case, his tinnitus was initially in his right ear but has progressed to both ears. The Tribunal prefers to accept his response at the hearing that the condition developed in the 1990s rather that his reference to the 1980s which appears in his reply to Comcare’s statement of facts, issues and contentions. The earlier response may have reflected the initial claim that his conditions were related to the insect damage, or the tyre burst, both subsequently said not to be related to the current claim for tinnitus.
There is evidence that Mr O’Kane’s tinnitus was initially due to trauma, namely, the assault he experienced in April 1996. At the same time, tinnitus is commonly associated with noise-induced hearing loss and it is likely that any worsening of the condition was due to his hearing loss, particularly as both ears developed tinnitus and hearing loss, whereas the injury from the 1996 assault was to his right ear only. For the purposes of this claim it is accepted that it is the noise-induced hearing loss from bus driving which may have aggravated Mr O’Kane’s existing tinnitus, and it is the aggravation of his condition which is relevant for this claim.
Mr O’Kane says he first noticed symptoms of tinnitus in the 1990s, but there is no evidence that it was of sufficient severity for him to seek medical treatment at the time for the condition. He acknowledged that had he thought it was sufficiently serious and related to work he would have put in an earlier claim. Mr O’Kane’s failure to seek medical assistance at the time, and the fact that for the purposes of this claim, his tinnitus is taken to be related to his noise induced hearing loss, the date of injury for which is May/June 2008, means the Tribunal has found that the date of injury for his tinnitus was also May/June 2008. That is the date the Tribunal has evidence he first sought medical treatment for hearing problems and tinnitus.
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’?
In Abrahams v Comcare the Federal Court held that in construing the notice provision the decision-maker should take:
…a broad, generous and practical interpretation…,consistent with both the beneficial purposes of the Act, and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice…will be giving the notice.[3]
[3] Abrahams v Comcare (2006) 93 ALD 147 at [18].
Comcare submitted that it had been prejudiced by Mr O’Kane’s delay in giving notice. The submission was based on a date of injury of 11 November 1985 and stated that the prejudice was due to the delay of over 25 years in the lodgement of notice of injury and claim. 1985 was the year in which Comcare accepted a claim by Mr O’Kane relating to the insect injury in his left ear; the current liability claim, lodged in 14 December 2010, although mistakenly listing the date of injury as 1985, is related to binaural hearing loss due to bus driving.
The Tribunal has found that the date of injury for the current liability claim is May/June 2008, not November 1985, so the submission by Comcare concerning 25 years’ delay loses force. Nonetheless, as Mr O’Kane did not lodge his claim until the end of 2010 and his date of injury was May/June 2008, it could be claimed that he did delay lodgement for some two and a half years and that this was not ‘as soon as practicable’. The issue, however, is also whether this prejudiced Comcare.
The Tribunal does not accept Comcare’s submission of prejudice. Two and a half years’ delay in circumstances such as this one is insubstantial. Any prejudice must take into account the nature of hearing loss, and the absence of, or difficulty in obtaining, evidence due to the delay.
Underpinning section 53 is a concern about prejudice to the party opposing the application. In Re Deveson and Comcare[4] section 53 was found to be no bar when an applicant had only recently become aware of a possible link between his condition and his employment. Of its nature, hearing loss is often slowly incremental and difficult to detect. As the report of the National Institute on Deafness and other Communication Disorders indicates:
The symptoms of NIHL [Noise Induced Hearing Loss] increase gradually over a period of continuous exposure…The individual may not be aware of the loss but it can be detected with a hearing test.[5]
[4] Re Deveson and Comcare [1999] AATA 80.
[5] See paragraph 50.
In other words, the gradual deterioration of the condition may prevent a person becoming aware of the deterioration of their hearing. The evidence suggests this appears to be the case for Mr O’Kane. In addition, although Mr O’Kane’s evidence was that he was contacted by an ACTION employee about possible hearing loss in 2008, given the content of the audiometry reports in May and June 2008 (see below), it was not surprising that Mr O’Kane did not attribute his hearing loss to ACTION vehicles at that time. Nor did Mr O’Kane appear to accept that he might have a claim until 2010 when he was contacted by his former solicitor in relation to a series of claims at that time.
The reports into the noise levels of ACTION buses were published in 2004, and 2010 respectively. The first report related to two types of buses only, and the later, more comprehensive, report may have been commissioned in the context of other hearing loss claims against ACTION which were being considered at that time.
The May 2008 audiometry report refers only to 10 years of construction as a possible cause of the hearing loss; and the June 2008 report notes a possible criminal injuries compensation claim, indicating that the audiologist had discussed the possibility that the hearing loss was due to an assault, rather than bus driving. So, despite the ACTION contact, the reports were not likely to convince Mr O’Kane of any employment-related cause of his hearing loss.
In summary, the gradually developing nature of the injury, the worsening of his hearing only since Mr O’Kane ceased bus driving in 2004, the paucity of audiometry reports for Mr O’Kane prior to 2010, and the fact that the pre-2010 audiometric evidence did not attribute hearing loss to bus driving, is an adequate explanation for Mr O’Kane’s delay between the middle of 2008 and the end of 2010, to notify Comcare of his claim.
The Tribunal acknowledges that the delay in obtaining objective evidence of noise levels of ACTION vehicles, and the fact that at present it is not feasible to obtain such evidence given the decommissioning of the relevant vehicles, has disadvantaged both parties. However, given the slow appreciation of individuals of their hearing loss, that is often a problem in such cases. Nonetheless, given the relatively short delay, and these other factors, the Tribunal does not consider the submission has sufficient merit to warrant rejection of the claim on this ground.
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?
This question was considered in Re Sandercock and Military Rehabilitation and Compensation Commission, another claimed long-standing hearing loss claim, as follows (footnotes omitted):
Characterisation of hearing loss as ‘injury’ or ‘disease’
According to a report obtained from the National Institute on Deafness and Other Communication Disorders, noise induced hearing loss (NIHL) can take two forms:
...loud impulse noise, such as an explosion, or loud continuous noise...Exposure to impulse and continuous noise may cause only a temporary hearing loss. If the hearing recovers, the temporary hearing loss is called a temporary threshold shift. The temporary threshold shift largely disappears 16 to 48 hours after exposure to loud noise...The symptoms of NIHL increase gradually over a period of continuous exposure.
Temporary threshold shift, as its name suggests, is a reversible hearing loss, although over time, if there is exposure to further prolonged loud noise or explosions, it may become permanent…
There is no consistent view in the cases as to whether hearing loss is an ‘injury or a ‘disease’ for the purposes of the 1988 Act. However, the distinction between an ‘injury’ in its primary sense and a ‘disease’ was described by the High Court as the difference between ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ as compared with the ‘underlying pathology’ that constitutes a ‘disease’.
Applying that distinction, acoustic trauma, if it results in sudden damage to sensitive hair cells of the inner ear as well as the hearing nerve would amount to an ‘injury’; while presbyacusis, being a slowly degenerative process associated with ageing, would amount to a ‘disease’.[6]
[6] Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517 at [25] – [28].
As acknowledged in the cases, ‘the appropriate characterisation of the cause of the hearing loss [is] generally apparent from the facts of each particular case’.[7]
[7] Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242 at [36].
In Mr O’Kane’s case, the claim that he suffered hearing loss from a sudden loud noise, namely, the burst tyre, was not pursued. The claim is that his hearing loss was due to loud continuous noise from driving buses in combination with the effects of ageing, and possibly a familial disposition to hearing loss, alongside the injury from the assault in 1996. That means that Mr O’Kane’s hearing loss is due to combined effects which are categorised differently. The assault, a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’, and the ‘loud continuous noise’ from driving buses which damages the sensitive hair cells of the inner ear, perpetuated and worsened over the period of his driving noisy buses and the 301 tram would both be ‘injuries’.[8] The age-related and familial predisposition would be characterised as slowly degenerating or congenital conditions and hence, if employment-related, would be ‘diseases’.[9]
[8] Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517.
[9] SRC Act section 5B(1).
Since it is the contribution of the former categories including hearing loss from bus driving, which are being considered in this claim, the Tribunal finds that Mr O’Kane’s hearing loss relates to an ‘injury’, namely, the damage to the sensitive hair cells of the inner ear.
Is Mr O’Kane’s claimed condition of tinnitus an ‘injury (other than a disease)’, or a ‘disease’ for the purposes of the Act?
Tinnitus is ‘a noise heard in the ear without any external cause’.[10] It is most commonly associated with noise induced hearing loss, but can also be related to trauma or disease. Initially the condition was manifested in Mr O’Kane’s right ear. Since then, the condition has deteriorated and is now experienced binaurally as shown in the audiogram of 8 May 2008.
[10] Dr Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010), 665.
Due to the indeterminate nature of the evidence, it is difficult to make a definitive finding of ‘injury’ or ‘disease’ in relation to Mr O’Kane’s tinnitus. There is evidence which the Tribunal accepts that Mr O’Kane first noticed tinnitus following the assault in 1996. The continuing and worsening nature of Mr O’Kane’s tinnitus suggests that his condition may also be associated with his noise induced hearing loss or his presbyacusis/familial predisposition, the first possibly being an injury, the second two causes, a disease.
On balance, the Tribunal finds that although the tinnitus may have been initiated by trauma, the condition has been perpetuated and worsened by association with his general hearing loss, both being characterised as ‘injuries’. Accordingly the Tribunal finds that his tinnitus initiated by, and exacerbated by being associated with, an ‘injury’ is itself an ‘injury’.
Was Mr O’Kane’s claimed condition hearing loss contributed to, to the degree relevant, depending on the legislation at the date of injury, to his employment with the ACT Government?
The Tribunal has found that Mr O’Kane’s claimed noise-induced hearing loss is categorised as an ‘injury’ which means for liability to accrue, that element of his condition must ‘arise out of or in the course of’ his employment.[11] A similar test applies to his tinnitus.
[11] SRC Act section 5A(1).
Mr O’Kane’s claim is that his noise-induced hearing loss is due in part to the noise he experienced while driving ACTION buses, particularly those with front mounted engines. He gave evidence that he drove the following vehicles while at ACTION. The dates shown indicate the periods those vehicles were in service. The vehicles were:
·A Leyland Volvo bus, which was noisy because its engine was next to the driver and it had a loud bell;
·A Thorneycroft bus (1975 – 1981) and a Bedford bus (1974 – 1976), which both had engines next to the driver and were noisy;
·‘301 trams’, which also had an engine beside the driver and were exceptionally noisy. Mr O’Kane drove these trams in split shifts, and also when they were hired out for formals, etc. On 2 January 1998, an Occupational Health & Safety Provisional Improvement Notice (PIN) was issued by the Transport Workers’ Union because of their noise levels. These trams were sold shortly afterwards.
·Dennis Dart 1998 – 2004;
·Volvo B58-50 1976 – 1990;
·AEC Select 1976 – 1985/6;
·Leyland (crash gear box) 1976 – 1978;
·AEC Swift 1976 – 1984;
·IRIS 1998 – 2004.
Mr O’Kane also submitted that ticket validators, placed behind the driver’s head, were installed in 1998/9, and if they jammed, let out a high-pitched scream. This noise could not be shut off by drivers until the bus returned to the depot where the supervisors could turn them off. He also submitted that a two-way radio was fitted to the buses in the 1980s. Initially they could not be adjusted by drivers and provided a constant stream of noise. At the hearing Mr O’Kane said he also drove a Hilo bus towards the end of his employment with ACTION. This was a bus used also for special needs passengers.
It is accepted that ‘the national standard for exposure to noise in the occupational environment is an average daily exposure level of 85 decibels’.[12] According to the national standard: ‘The eight-hour equivalent continuous A-weighted sound pressure level…is the sound pressure level for a constant noise that would, in an 8 hour period, have the same energy as that due to the actual sound which may vary throughout the day’.[13] A-weighted is the most commonly used weighting scale. The C-weighted noise scale reflects the frequency sensitivity of the human ear at very high noise levels. It is less commonly used.
[12] National Occupational Health & Safety Commission National Standard for Occupational Noise (NOHSC: 1007 (2000)), Preface, vii.
[13] Marion Burgess Noise Levels in Special Needs Buses for ACTION Authority South Region (UNSW at ADFA, 2004) 4.
Exposure to noise levels above an average of 85 decibels for a period of at least 8 hours a day can be harmful. A 2010 report into the ACTION bus fleet found that two of the buses tested, one of which was the Dennis (Dart SLF) which had been driven by Mr O’Kane, exceeded the 85 decibel limit on one of the shifts covered.[14] The report also noted that ‘there were only two shift samples that exceeded the National Standard’. They were shifts that had a designated school route in both the morning and afternoon.[15] The report concluded that the situation did not occur sufficiently often nor for sufficiently long periods on each occasion for noise induced hearing loss to be experienced by drivers assigned to these shifts.[16]
[14] Robson Environmental Occupational Noise Exposure Assessment: ACTION Buses (2010) 18.
[15] Id at 25.
[16] Id at 23.
A 2004 report entitled Noise Levels in Special Needs Buses for ACTION Authority South Region, a survey which included the Hino bus, found that ‘the noise levels for the driver and for the passengers are not in excess of the criteria for occupational noise exposure’.[17]
[17] Marion Burgess Noise Levels in Special Needs Buses for ACTION Authority South Region (UNSW at ADFA, 2004) 5.
The PIN conducted under federal occupational health and safety regulations on 2 January 1998 found that for one 301 tram, acceleration showed 94 decibels, with a peak reading of 100 decibels for the driver’s cabin, and a peak reading for the handbrake of 124 decibels. For a second tram, the acceleration reading for the driver’s cabin was 85 decibels, with a peak reading of 100 decibels, and for the handbrake, the peak reading was 90 decibels. A recommendation in the PIN was the removal of unsuitable vehicles, a recommendation which was adopted and the trams were decommissioned in 1998.
The following table indicates the percentage of hearing loss experienced by Mr O’Kane as found by the medical experts and on audiometry. There is no evidence of Mr O’Kane’s level of hearing when he started bus driving.
Table (all percentages have been corrected to deduct the effects of ageing):
66. 30 August 1996
8 May
20082 June 2008
23 November 2010
24 October 2011
10 July 2012
14 August 2012
Dr Hugh Williams Australian Hearing Audio Clinic Andrew Holgate, Dylans Hearing P/L Dr Matison’s assessment based on Holgate report Audio Clinic Dr Pham’s report based on November 2010 audiogram 15.1% 33.9%
(Dr Matison’s assessment based on the report)15.1%
41.7%
41.3%
(Dr Matison estimated 0.6% due to acoustic trauma)50.6% 39.8%
(Of which 17.4% due to noise induced hearing loss from employment)
Mr Herbert, a former ACTION driver, said that if allocated to one of the three 301 trams, the shift would be between 8-10 hours. One of those trams was allocated to the Canberra city route. Two of the trams were noisier than the third. The trams were introduced in 1995 and retired in 1998. Of the 12 drivers of those trams, six of them have put in hearing claims which were accepted by Comcare. Mr Herbert’s evidence was that because of the route the driver remained constantly in second/third gear which was noisier than the driving gear. In his view, the Dennis Dart was noisy but not as bad as the Leyland crash gearbox bus.
The engineering manager for ACTION gave evidence that he was not a noise expert but to his knowledge the noise level on a normal day of driving buses did not exceed the 85 decibel level. However, he conceded that he did not know whether the 301 trams had been tested, nor the Dennis dart bus. In his view, even the two vehicles which exceeded the 85 decibel level did not do so for 8 hours. In his view exposure was harmful only if over 8 hours.
Dr Matison’s view, from which he did not resile at the hearing, was that the audiogram findings were ‘characteristic of familial forms of sensorineural deafness’ at least for the left ear, and was not typical of steady state noise exposure. He favoured this view, even though Mr O’Kane’s right ear exhibited a ‘high tone dip consistent with noise trauma’, that is, hearing loss in the 2000hz to 4000hz range, since steady state noise exposure would have had the same impact on both ears. His view was supported by the fact that the 40.7 per cent binaural hearing loss was ‘much higher than seen in the majority of cases of industrial noise trauma’.
Dr Matison conceded that there was some work-related element, but noted the difficulty in estimating the quantum of that contribution due to the fact that ‘there is no contemporaneous report from either his GP or a specialist, no claim and no audiometry’. Moreover, as he pointed out, what later audiometry existed was confusing. As he said in his report:
The June 2008 audiogram shows, after an allowance for presbycusis, a 15.1% binaural hearing impairment, yet the Australian Hearing audiogram done approximately one month previously indicated a 33.9% binaural hearing handicap after an allowance for presbycusis.
As he went on:
There is no incident or factor in the history to account for this disparity. Furthermore, the Audio Clinic audiogram on 10 July 2012 shows a 50.6% binaural hearing handicap after a deduction for presbycusis, significantly greater than the audiometry of 23 November 2010.
What it does establish, he said, was:
…that the bulk of Mr O’Kane’s hearing losses appear to have occurred between 2008 and 2012. This deterioration cannot be attributed to his Commonwealth Government employment which ceased in 2005. [sic]. Noise trauma does not progress once exposure to the offending noise ceases.
In a supplementary report dated 21 November 2012, Dr Matison conceded that the loss of hearing in the right ear ‘could be consistent with the injuries received in the assault’ in 1996. However, he denied that all the hearing loss could be attributed to that cause since the left ear also had a hearing loss. In the absence of the audiogram at the time, he could not calculate what proportion of hearing loss might be attributed to noise from driving buses as compared with the assault.
Dr Pham’s view in his report of 14 August 2012 was that the Robson report indicated that for the two trams referred to, ‘during acceleration…there was noise level at 94 decibels with a peak reading at 100 decibels’ and this would be sufficient to damage hearing. He noted it was difficult to know how often the tram accelerates but it could be inferred that Mr O’Kane was periodically exposed to excessive loud noise. He considered this would have been sufficient to cause employment-related hearing loss. Discounting for periods when the engine was idling or not exceeding the 85 decibel limit, and for presbyacusis, he attributed Mr O’Kane’s work-related binaural hearing loss to be 17.4 per cent of the total hearing loss.
At the hearing Dr Matison said that a person can withstand 100 decibels of noise per day for no longer than about 15 minutes per day. If the exposure was only for shorter times, it would not cause deafness. He acknowledged that the 301 tram exceeded that noise level when accelerating or braking but said without knowing the average time per day or per shift of Mr O’Kane’s exposure, or whether he was in the noisier or the less noisy of the trams, there was no evidence that driving the 301 tram contributed to his deafness.
At the hearing, the two experts conceded that noise-induced hearing loss and tinnitus is usually permanent. The experts also agreed that employment made some contribution to Mr O’Kane’s hearing loss. The experts agreed that the two most consistent audiograms were those in May and June 2008. They were undertaken only four years after Mr O’Kane ceased work with ACTION and probably were sufficiently indicative of his hearing conditions in 2004.
They also agreed that the fairest way to estimate his hearing loss was to take an average of the two results for the two 2008 audiograms for the frequencies most likely to be associated with noise induced hearing loss, that is, the hearing loss within the 2000hz to 4000hz range. That produced a figure of 8.55 binaural hearing loss. A deduction needed to be made for age for both audiogram results. That produced a figure, according to Dr Matison, of 4 for the Audio Clinic audiogram and 9 for the Australian Hearing audiogram.[18] Averaging the two lead to a figure of 6.6 which divided by two gave a whole person impairment of 3 per cent. Both experts agreed that Mr O’Kane’s tinnitus attracted a five per cent hearing loss.
[18] The Tribunal reached a figure of 10 for the Australian Hearing test figure, but in the result that does not affect the outcome.
Dr Matison also said, following discussions with Dr Pham, that there was not enough evidence to reach a firm conclusion that Mr O’Kane did suffer hearing loss due to work factors. Dr Matison said their findings were on the basis of ‘possibilities’, but not of ‘probabilities’. There was insufficient proof he said that Mr O’Kane was exposed to noise from driving ACTION vehicles. However, he acknowledged that they could not rule out noise induced hearing loss since he had suffered binaural hearing loss in the upper 2000hz to 4000hz range, at least in the right ear, typical of noise induced hearing loss. But he said that the pattern of hearing loss shown in the audiograms was not typical of noise induced hearing loss. Each hearing test showed markedly different results from the other, and there was little or no consistency in the readings. Dr Pham said there was a contribution from work, but it was difficult to quantify.
The Tribunal is hampered in this matter because of the paucity of evidence of the hours of driving per day by Mr O’Kane of the vehicles found in the reports to have exceeded safe noise levels, and the frequency of such exposure. He did drive the Hino bus which was said to be noisy, but the 2004 report said the Hino bus did not exceed safe occupational limits and it is not known how often and for what periods he drove the bus. Similarly he did have split shifts on school buses, but the excessive noise levels, according to the Robson reports, occurred for short periods only when the bulk of the children were either entering or exiting the buses, recorded as being for less than 15 minutes. Mr O’Kane did drive 301 trams but there is the same deficiency of information about length of shifts, frequency of shifts and length of excessive noise levels when accelerating, braking, or driving in second/third gears. The average length of time he was exposed to these noises is not known. Any noise level would have been intermittent and it is not known for how long it would have continued.
Given an 8 – 10 hour shift it is unlikely on the evidence for excessive noise levels to continue for an average of 8 hours a day. In addition, the audiometry reports show that Mr O’Kane’s hearing loss was worse on his right than his left ear. That finding is inconsistent with Mr O’Kane’s claim of excess noise from engines located to the left of the driver at the front of the vehicle. Finally, it is not known what was the decibel level of the scream from the malfunctioning ticket validators, nor for how long or how frequently Mr O’Kane was exposed to the noise. The Tribunal also notes that it has no information about the period during which the radio noise could not be turned down by the driver, nor of Mr O’Kane’s length or frequency of exposure.
Whether Mr O’Kane’s hearing loss arose out of or in the course of his employment involves both a causal and a temporal test, although there is overlap between the two tests.[19] ‘Arising out of employment’ refers to the work which an employee was employed to do and what is incidental to that work.[20] There is no question that to the extent that Mr O’Kane’s hearing loss was due to driving buses, it arose out of, or in the course of his employment.
[19] Mendez v Telstra Corporation Ltd (1998) 147 FLR 394.
[20] Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 314; Roncevich v Repatriation Commission (2005) 222 CLR 115 at [17] – [18].
However, the Tribunal is not satisfied on the evidence that Mr O’Kane’s hearing loss was due to his work or an incident of that work. In the absence of evidence about length and frequency of exposure, and the need for continuous exposure at A-weighted levels for an average of 8 hours a day, and for higher frequency noise levels, for example, averaging above 100 decibels, for longer than 15 minutes. In light of medical and other evidence about the contributing effects of injury to Mr O’Kane’s ears from two assaults, of his ageing, and the possibility of some familial predisposition as well, the Tribunal is not satisfied that his hearing loss can be attributed to his employment. Both medical experts agreed that the evidence was deficient without the benefit of a report from a sound engineer and this would be difficult to obtain now that the noisiest buses or trams had been sold and were no longer in use.
The finding is supported by the limited evidence of Mr O’Kane’s hearing loss prior to 2004, being confined to the test undertaken in 1996. In addition, the fact that two of the noisiest vehicles Mr O’Kane drove, namely, the Leyland crash gear box bus and the 301 trams, were decommissioned by 1978 and 1998 respectively, some time prior to Mr O’Kane’s ceasing work with ACTION. In addition, his hearing loss is worse in his right ear, when the engine noises to which he said he was exposed were closer to his left ear. The evidence that his hearing has worsened since leaving work is also significant.
Dr Matison’s evidence, which the Tribunal accepts, is that after exposure to excessive noise ceases, noise induced hearing loss ceases. So the worsening of Mr O’Kane’s hearing after he ceased working for ACTION indicates that his worsening hearing loss, as reflected in audiograms of 2010 and 2012, must be due to other causes. The post-employment worsening of his hearing is supported by the fact that Mr O’Kane did not seek medical treatment for the condition until 2008, a finding consistent with the audiometry reports. Finally, although Dr Pham was prepared, prior to the hearing, to attribute 17.4 per cent of Mr O’Kane’s hearing loss to employment, at the hearing, he acknowledged that it was not possible to know what amount could be attributed to his employment. Dr Matison was only prepared to allocate 0.6 per cent hearing loss to employment and although both experts considered the fairest method of estimation in the unsatisfactory state of the evidence was to average the results from the audiometric tests in 2008, that option only applied if the Tribunal accepted, as it has not done, that the hearing loss arose out of or during the course of Mr O’Kane’s employment.
Was Mr O’Kane’s claimed condition tinnitus contributed to, to the degree relevant, depending on the legislation at the date of injury, to his employment with the ACT Government?
Mr O’Kane’s evidence was that his tinnitus was severe, continuous and interfering with sleep.
Dr Matison’s initial view was that it was ‘highly unlikely that Mr O’Kane suffered any tinnitus from [the assaults]’. At the hearing he conceded the evidence indicated that Mr O’Kane did not have tinnitus prior to 1996, the condition was compatible with the effects of an assault, and this suggested it was the trauma, not noise which contributed to his tinnitus. At the same time he acknowledged that tinnitus can be either of gradual onset or of sudden onset, although it is usually sudden. He noted the confusion from the Audio Clinical reports which indicated that ‘tinnitus was either absent, intermittent or mild’. He could not explain why it was bilateral in Mr O’Kane’s case.
Dr Pham’s view in his report of 14 August 2012 was that ‘the level of noise exposure could contribute or aggravate tinnitus’. However, at the hearing, he said it was hard to say what caused Mr O’Kane’s tinnitus and there was no way to know. In this state of the evidence, the Tribunal is not satisfied that Mr O’Kane’s tinnitus was sufficiently associated with his hearing loss for it to have ‘arisen out of or in the course of his employment’.
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?
Section 124(3) prohibits lump receipt of compensation for permanent impairment where an impairment of an employee arose before the commencing date of the Act. The commencing date of the Act is 1 December 1988. In Mr O’Kane’s case, although it is accepted that his tinnitus probably dates from 1996, and that he may have sustained some noise-induced hearing loss during the period of his employment by ACTION between 1976 and 2004, that is, employment which pre-dates 1 December 1988, the evidence that he suffered hearing loss due to employment prior to 1 December 1988 is not sufficient for the Tribunal to be satisfied of the causal link. In those circumstances, there is no need further to consider the prohibition in this section.
The Tribunal is satisfied that the injuries did not arise out of or in the course of employment. This also means it is not necessary to consider further the issues relating to the permanent impairment claim. 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.
I certify that the preceding 88 (eighty - eight) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member .................[sgd]...............................................
Associate
Dated 4 October 2013
Dates of hearing 5 and 6 August 2013 Counsel for the Applicant Mr David Richards Advocate for the Applicant Mr Bill Redpath Solicitors for the Applicant Blumers Lawyers Counsel for the Respondent Mr Peter Woulfe Advocate for the Respondent Mr Andrew Schofield Solicitors for the Respondent SRC Legal
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