Marton and Comcare (Australian Defence Industries)
[2005] AATA 46
•19 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 46
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1496
GENERAL ADMINISTRATIVE DIVISION ) N2004/445 Re Mr. Dezider Marton Applicant
And
Comcare (Australian Defence
Industries)
Respondent
DECISION
Tribunal Mr Michael Griffin, Member Date 19 January 2005
Place Sydney
Decision The Tribunal affirms the decisions under review.
…………………………………..
Mr Michael Griffin, Member
CATCHWORDS
WORKERS' COMPENSATION - permanent impairment -industrial deafness - whether deterioration in hearing caused by occupational noise exposure - whether hearing loss continued to deteriorate after cessation of noise exposure - permanent tinnitus - whether tinnitus caused by occupational noise exposure – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988- sections 24 and 27
REASONS FOR DECISION
19 January 2005 Michael Griffin Member
1. This is an application made by Mr Dezider Marton ("the Applicant") for review of two reconsideration decisions of delegates of Comcare (Australian Defence Industries) ("the Respondent") dated 10 February 2003 and 11 February 2004. These decisions affirmed earlier decisions that the Respondent is not liable to pay compensation in respect of industrial deafness and permanent tinnitus.
2. At the hearing the Tribunal had before it the documents (T documents) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 and the Exhibits tendered during the hearing.
3. The Applicant gave oral evidence at the hearing. Dr Stylis was called by the Applicant to give oral evidence, and Dr Carroll was called by the Respondent to give oral evidence. Both Doctors are ear, nose, throat and hearing specialists.
BACKGROUND
4. The Applicant was born on 15 April 1948 in the former Yugoslavia. In Yugoslavia he worked in a factory as a product controller for about 3 years prior to commencing clerical duties. He was in the Yugoslavian Army from 1968 to 1971. In the Army he was engaged as a truck driver and instructor. He came to Australia in 1981. He claims that his hearing was excellent when he left Yugoslavia. In Australia he was a professional soccer player for about 5 years and worked part time for Atlas Printing for about 30 hours a week. He worked for that company cleaning and sorting papers. He was not exposed to noise in those occupations.
5. He was employed by Australian Defence Industries (“ADI”) from 13 August 1984 until 19 March 1993 at Garden Island dockyard in Sydney. He was employed as a tradesman’s assistant (Tool Material Storeman) and later as a clerical assistant and storeman. In the course of his employment he was exposed to various industrial noises (such as hammering, grinding, jackhammers, compressors, pumps, engines and welding). He has described the work area as “quite noisy”. At the beginning of his employment no hearing protection was provided though later it was made available. As a result of this exposure he claims he suffered a hearing loss.
6. In June 1987 the Applicant was involved in a car accident on a journey home and sustained injuries to his back and neck. The documents relating to that injury (T4, T5) indicate that he was on compensation and not at work for the period 16 June 1987 to 29 January 1988 (T5).
7. He returned to work on 1 February 1988 and from then until he was retrenched in 1993 he was on light duties - first in the payroll office for a few months where there was no noise exposure; then in the mail room for about a year where there was also no noise exposure and then as a storeman in the coppersmith’s workshop (from about early to mid 1989 until 1991). This area was separated from the workshop only by about 10 yards and by a wire fence. He thought the intensity of the noise was much the same in the workshop and perhaps a bit less on board ship. He said he had been exposed to more intense noise in his first job.
8. From 1992 he was again in an office in the office complex on Garden Island and his duties required him to go on ships and to noisy areas of the yard for approximately 2 or 3 hours a day. The remainder of the day was in a quiet office doing clerical work. He claims that in this work he operated a computer and had a “buzzing” in his ears which was different to the computer noise and he thought it strange and like a cricket, short and sharp and coming and going. He didn’t know why it was happening and didn’t take any notice of it.
9. He claims that he had mentioned to his former wife a few times that he had buzzing in his ears. He coped with this most of the time, though he started waking from sleep because of it. He would go into the lounge and watch television. This was in the period after 1992. He claims it worsened from 1992 to 1994.
10. After he was retrenched he claims the buzzing has worsened and he has noticed that he speaks louder. The buzzing has become worse in the last 3 years. He went to see a general practitioner in 1999 though received no treatment. In 2002 he was referred to Dr Stylis. He claims that at the present time he cannot sleep without noise (for example with the television on), as if he is in a quiet room the noise from his ears wakes him up. His hearing is the same; he wears hearing aids and feels that he talks loudly. He separated from his wife in 1999 and has since been living with his partner.
11. The Applicant has not worked since his retrenchment but has been a soccer coach.
12. The Applicant claims that his employer arranged for a hearing test in 1989 and he was paid some compensation. He claims not to have received any advice from a solicitor or his union about it.
13. Ear protection in the form of ear plugs had been available in boxes for about 3 or 4 years from 1989. The Applicant didn’t know if any ear muffs were available. He sometimes used the ear plugs though not all the time. Where possible he did use them and when he knew he was going into a noisy area he would use them. He agreed that the job was quieter after 1987 and that after 1989 the exposure to noise was moderated by the use of ear plugs.
14. In relation to the history given to the doctors the Applicant confirmed that he had given a truthful work history to Dr Stylis and had told him that he experienced a worsening of tinnitus in the past 3 years and prior to that it had been intermittent. He agreed that he had not been exposed to any further noise after his retrenchment. In relation to his attending on Dr Carroll he agreed that he had told him the truth about his history. He agreed that he had told him that he had hissing in both ears, his hearing had deteriorated over the last 3 years and that it had progressively worsened since leaving Garden Island.
The evidence from the doctors:
15. The doctors are in agreement that there is a dual pathology causing hearing impairment. Dr Carroll in his evidence said that he considers damage to the low tones requires exposure to intensive noise (above 90 decibels) over a prolonged period of 30 to 40 years. Dr Stylis agreed that damage at the lower tones required prolonged exposure. Dr Carroll was of the view that the lower tones hearing loss was probably unrelated to the Applicant’s employment. He was also of the opinion that the tinnitus was not work related. Dr Stylis contradicted these latter opinions.
The Medical Reports and history of claims:
16. On 25 January 1989 a report by a medical officer indicated hearing loss due to noise at work (T6). A medical report by National Acoustic Laboratories (Dr A.E Khan E.N.T Specialist) dated 21 November 1989 indicated a diagnosis of “mild bilateral sensorineural hearing loss” caused by employment since 1984 when the Applicant was exposed to “various industrial noises at Garden Island”. The total percentage loss of hearing was assessed at 6.8% (T6; T14).
17. On 11 December 1989 a determination was issued accepting liability for loss of hearing and assessing the Applicant was entitled to lump sum compensation of $2,855.05 based on a hearing loss of 6.8% (T16).
18. On 7 September 2002 the Applicant completed a Claim for Rehabilitation and Compensation in respect of “sensori-neural hearing loss”. He states that he first noticed this in 1996 (T18, PT18). He also indicated in that claim that he had not ever had a similar injury or illness previously (PT18) and that he had been referred to Dr. S. C. Stylis.
19. In support of that claim the Applicant provided a medical report from Dr. Stanley C. Stylis dated 7 September 2002. The doctor reported that the Applicant had given a history of “problems with hearing for some years”, there were complaints from his family about poor hearing and he experienced a “sloshing sound in his ears which is present all day”. The doctor performed an audiogram which showed a “high frequency sensori neural hearing loss”. It was accepted that this was permanent and related to the Applicant’s occupation. It was noted that his job at Garden Island appeared to be the last noisy job he had. Mr Stylis assessed a binaural impairment of 17.16%. The whole person impairment was calculated as being 8.6%. The chronic tinnitus was assessed at 5%. This giving a combined value of 13.6% (T19).
20. In a determination dated 10 February 2003 liability was denied in respect of “aggravation of specified forms of hearing loss (bilateral)” pursuant to section 14 Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The officer was not satisfied that the Applicant’s current condition was caused by, or related to, a work related incident (T24).
21. The Applicant sought a review of that determination by letter dated 13 February 2003 (T27).
22. By Reviewable Decision (the first decision) dated 21 August 2003 an Independent Review Officer determined to affirm the decision dated 10 February 2003 on the basis that the decision to reject the Applicants claim as a new claim was correct and the “Employee’s claimed hearing loss (deterioration) was to be assessed against his previous claim” (T33).
23. By reviewable decision (the second decision) dated 8 April 2004 an Independent Review Officer determined to affirm a decision dated 11 February 2004 on the basis of the decision to reject the Applicant’s claim as “the officer was satisfied that the claims manager was correct in rejecting liability for the employee’s claim for compensation for permanent impairment and economic loss dated 5 February 2004”. This was on the basis of a preference for Dr Carroll’s reports and his opinion that there was “evidence of hearing loss not due to the Employee’s employment with ADI Limited”, and in being “not satisfied that the tinnitus the Employee reports is the result of his employment with ADI Limited noting the history of onset of symptoms and the opinion of Dr Carroll”.
24. The Applicant has been examined by Dr Stylis and Dr Carroll; both ear, nose and throat specialists. There is disagreement between the specialists about the cause of the Applicant's further hearing loss and tinnitus, and about the level of his impairment. It is common ground between the parties that the Applicant has binaural hearing loss and that he is now suffering from tinnitus. It is also common ground that there is a dual pathology.
25. There was no mention of tinnitus at the time of the earlier claim, determined on 11 December 1989. The specialist report of Dr. Stylis (1 November 2003) records the Applicant as giving a history of tinnitus becoming a problem in the prior 2 to 3 years. The specialist report of Dr. Carroll (20 November 2003) records the Applicant as giving a history of tinnitus developing in the last 3 years. The Applicant in his application dated 7 September 2002 gives 1996 as the date when the hearing loss was first noticed.
APPLICABLE LEGISLATION
26. The relevant provisions of the 1988 Act are:
“Section 24
Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.”
and
“Section 27
Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.”
MEDICAL HISTORY
Tinnitus
27. In his report of 21 November 1989 Dr A. E. Khan does not mention tinnitus. The first reference in the documents is in Mr Stylis's report of 7 September 2002, in which he noted that tinnitus was present and assessed it at 5%.
28. In his report of 1 November 2003 Mr. Stylis comments on the tinnitus that the Applicant “categorically states that the tinnitus became a problem in the last 2-3 years. He did have intermittent tinnitus from time to time prior to that but in the last 2-3 years the tinnitus has reached an extent where he sleeps in a separate room …”.
29. The Applicant's evidence at hearing was that he first began to suffer from tinnitus in or about 1999, though as noted above in his application dated 7 September 2002 he gives 1996 as when he first noticed the hearing loss.
30. Under the 1988 Act tinnitus became a separate compensable injury. In a determination dated 8 April 2004 a delegate of the Respondent rejected the Applicant's claim for permanent impairment for tinnitus on the basis that the tinnitus was not the result of the applicant’s employment with ADI Limited noting the history of onset of symptoms and the opinion of Dr Carroll.
31. In his report dated 20 November 2003 Dr Carroll says of the tinnitus (T14) that there was no medical history of hearing loss or tinnitus prior to his employment with ADI in 1984. He comments that there is now evidence of hearing loss “not due to his employment with ADI as the audiometric configuration is no longer consistent with being solely the result of noise exposure”. He considers “I would relate this tinnitus developing so long after his employment to the non compensable component and not to his employment with ADI Limited. When the non noise induced hearing loss began cannot be definitely ascertained”. He goes on to state “I do not consider that Mr Marton suffers tinnitus due to his employment with ADI Limited”.
32. In his report dated 12 January 2004 (T15) Mr Stylis comments that there “appears to be no other cause for the tinnitus and the patient does have a hearing loss and therefore this is the most likely pathology to cause the tinnitus…”.
SUBMISSIONS
Applicant
33. There are two reviewable decisions (at T33 and T20). The Applicant worked at Garden Island from 1989 and was exposed to loud noise. It was submitted that this was enough to evidence a section 14 claim. It was argued that the reviewable decision should have included the additional period after 1989 and should be set aside. The Applicant should be entitled to a compensation for hearing loss and tinnitus.
34. It was submitted that the Applicant worked in the store from 1989 to 1992 and was exposed to loud noise and though he worked in the office he regularly visited the work floor.
35. It was submitted that some hearing protection in the form of ear plugs was available after 1989 but in practice the Applicant did not often use it and would take them out when speaking to people.
36. It was submitted that though there are some inconsistencies in the evidence concerning the onset of the tinnitus, the Applicant had given evidence of having tinnitus when he was working in the office. It was maintained the issue is whether the tinnitus is work related and if it is found to be then the question is, what is the assessment.
37. It was submitted that tinnitus is a disease rather than an injury and is not a physical damage. The issue is whether it is materially contributed to by work. Noise loss is a well known contributor to tinnitus.
38. It was submitted that whilst Dr Carroll stated that the tinnitus it is due to another factor the question arises as to what that other factor is.
39. It was submitted that there is a known factor and it is only necessary to show that it is a material contributor.
40. It was submitted that on the facts, the work at Garden Island was such a material contributor.
41. It was submitted that reliance should be placed on Dr Stylis’s evidence as Dr Carroll had stated (Transcript page 103) “it is a possibility”.
42. It was submitted that though Dr Carroll had stated that tinnitus cannot worsen he had not presented any literature to support this. It was submitted that the Applicant has produced literature to support this view.
43. There was no previous assessment of tinnitus and it was submitted that it is permanent. There was no evidence of a Novus Actus Interveniens.
44. It was submitted that there is evidence of the hearing loss getting worse as evidenced by the referral from the GP in 1999. It was submitted that the tinnitus should be assessed at 5%.
Respondent
45. It was accepted that the 1989 decision was erroneous and the real issue was entitlement to compensation for hearing loss and tinnitus. It was not accepted that there should be an award for costs.
46. It was submitted that from the evidence the Applicant worked as a tradesman’s assistant from 1984 until 1987. From June 1987 until the end of 1988 he was not working in a noisy environment.
47. It was not conceded that his work environment after that was of sufficient intensity to produce a hearing loss;
48. The Applicant has agreed that his earlier position was noisier and that from 1989 he sometimes used hearing protection;
49. It was submitted that both doctors agree that there is dual pathology affecting the Applicant’s hearing.
50. The audiograms are atypical, he has another pathology going on in his ears.
51. Dr Carroll had given evidence that for the lower levels to be involved there is a need for long exposure with sufficiently high levels of noise.
52. Dr Stylis agreed that the noise level needs to be in the order of 90 decibels but would not say what period would constitute a prolonged period.
53. It was submitted that both doctors had exercised clinical judgement but Dr Carroll had given better reasons for his conclusion.
54. Dr Carroll had given evidence that in the vast majority of cases hearing loss is present in the higher tones and the low tones loss is not what you would expect to find (transcript page 81).
55. It was submitted that the Applicant had not established sufficient long term exposure of the required noise intensity.
56. In summary it was submitted that Dr Carroll had provided clear, logical and coherent evidence to explain his apportionment and had referred to his methodology based on the recommendations of the Australian Society of Otolaryngology (Transcript p85).
57. It was submitted that there was nothing in any of the evidence to support the inclusion by Dr Stylis of the 1500Hz level in his assessment.
58. Whilst the Applicant had submitted that the 1500hz level should be included as it was included in the 1989 assessment and that this should be for the sake of consistency, it is apparent that Dr Stylis had in his own assessment excluded the 500 and 1000. It was submitted that the net effect of the scientific evidence is that the 1500hz should be excluded.
59. It was submitted that Dr Carroll’s opinion should be accepted.
60. In respect of tinnitus the Applicant submitted that tinnitus is a disease rather than an injury. If it is the first, then you only need to prove material contribution. If it is the latter then you must prove that it results in impairment. Dr Stylis in his evidence has stated that it is not a disease (Transcript p73) “he’s got damage to his organ of hearing”.
61. It was submitted that it is an injury and that the Applicant must prove cause. The Respondent asked what has caused the tinnitus to become permanent in 1999 or 2000?
62. The doctors had given evidence that there is a dual pathology and it was submitted that the other (unknown) pathology had continued to get worse. The Applicant had argued that the Respondent hadn’t established what the other pathology is. It was submitted that the Respondent doesn’t have to and that the onus is on the Applicant.
63. The question is whether the Applicant has satisfied the Tribunal that the cause of tinnitus is work related or is caused by the other pathology. It was submitted that as the Applicant left work in March 1993 and the condition became permanent in 1999 or 2000 or 2001, that the clear and logical explanation is that there was some reason for change in condition and it was not work related. Dr Stylis had not distinguished between the 2 causes.
64. Reference was made to the Coles article tendered by the Applicant (Exhibit A6) and it being supported by peer review. It was submitted that a theory is not proved by peer review.
CONSIDERATION OF EVIDENCE AND FINDINGS OF FACT
65. It is agreed between the parties that the Applicant was exposed to occupational noise on a regular basis in the period August 1984 to June1987. It is clear from the documents that he was not at work in the period June 1987 to January 1988 and when he returned to work in February 1988 he was on light duties. This involved either working in an area with no loud noise (estimated to be for a few months and then a year) or working in an area which was adjacent to a workshop which did have loud noise. He was assessed and paid compensation in respect of noise-induced hearing loss of 6.8% in November 1989. The parties agree that the 1989 decision was in error. That decision is not before the Tribunal and I have no jurisdiction to review it.
66. There is some disagreement as to when the Applicant ceased work for the Respondent. The Applicant considers it was in 1994 whereas the Respondent’s records indicate he was retrenched in March 1993. I consider that the Respondent’s records would be the more reliable evidence. The Tribunal finds that the Applicant ceased his employment with the Respondent in March 1993.
67. The Applicant’s evidence is that he had no noise exposure after ceasing his employment with the respondent.
68. The Applicant was provided with and sometimes wore protective ear plugs from 1989 onwards, though sometimes he did not wear them.
69. Two expert witnesses gave evidence about Mr Marton’s hearing. They agreed on a number of matters and disagreed on some others. They agreed that he has permanent hearing loss and tinnitus and that there is dual pathology in his case. They were in complete disagreement as to the causation of the hearing loss and the tinnitus. Where Dr Stylis and Dr Carroll disagree, the Tribunal prefers the evidence of Dr Carroll. The Tribunal found Dr Stylis's evidence on some matters confusing and inconsistent, especially on the issue of interpretation of the audiograms and his reasons for including the 1500Hz results in his assessment. Dr Carroll on the other hand was clear, consistent and concise in his evidence on these and other matters.
70. The Applicant suffers from bilateral sensorineural deafness with tinnitus. Dr Stylis and Dr Carroll agree that noise induced hearing loss occurs during exposure but that hearing does not continue to deteriorate after cessation of noise exposure. The Tribunal accepts this evidence and finds accordingly.
71. Dr Stylis and Dr Carroll agree that noise induced hearing loss does not become worse after the cessation of exposure to noise. They also agree that there is a dual pathology in relation to the Applicant’s current condition. The doctors disagree about the cause of that portion of the Applicant's sensorineural hearing loss that has occurred since the November 1989 award of compensation.
72. In deciding this question the Tribunal considered carefully the relevance of the shape of the audiogram, the timing of the deterioration in the Applicant's hearing, and the likelihood of alternative diagnoses. The Tribunal is satisfied on the evidence before it that the audiograms are consistently atypical of noise-induced hearing loss. While the shape of the audiograms may not exclude all possibility of the diagnosis of noise-induced hearing loss, it makes that diagnosis most unlikely. The doctors are in agreement that there is a dual pathology causing hearing loss. The Tribunal accepts the evidence of Dr Carroll that there has not been a sufficiently prolonged period of noise exposure to cause the hearing loss at the 1500Hz level and below.
73. The Tribunal finds that while the Applicant was exposed to a degree of continuing industrial noise in the period November 1989 to March 1993, it was of a much lesser degree than prior to November 1989. The Tribunal also finds that the deterioration in the Applicant's hearing after November 1989 is too great to have been caused by the limited occupational noise exposure he experienced after that date. The sensorineural hearing loss continued to progress long after the Applicant's exposure to industrial noise had ceased. The Tribunal finds that Mr Marton’s hearing loss was not caused by his employment.
74. In relation to tinnitus, the parties agree that the Applicant suffers from tinnitus though there is disagreement as to whether it should be included in the calculations.
75. There are two issues for the Tribunal to decide:
(1) When did the condition commence?
(2) Is it a disease or injury caused, accelerated, aggravated or materially contributed to by his employment?
76. Both doctors obtained a history of tinnitus having been present for 2 to 3 years. Mr Stylis also obtained a history of it having been intermittent prior to that period. The applicant said that it was present for the prior 2 to 3 years and in his application gave an onset date of 1996.
77. The Tribunal finds that the tinnitus became permanent about 1999. Mr Marton’s occupational exposure to noise ceased in March 1993. Given this extended period of six years before permanent onset and the accepted dual pathology operating, the Tribunal is not satisfied that there is a causal link between the Applicant's tinnitus and his prior occupational noise exposure.
78. For these reasons the Tribunal will affirm the decisions under review.
DECISION
79. The decisions under review are affirmed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDates of Hearing 23 June 2004 and 20 July 2004
Date of Decision 19 January 2005
Counsel for the Applicant Mr Elliott
Counsel for the Respondent Mr Chen
Solicitor for the Respondent Sparke Helmore
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