Mifsud and Military Rehabilitation and Compensation Commission
[2008] AATA 820
•14 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 820
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3228
VETERANS' APPEALS DIVISION ) Re MICHAEL MIFSUD Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date14 July 2008
PlaceMelbourne
Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS' ENTITLEMENTS – claim for hearing aid – whether hearing loss due to service – payment of medical expenses – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 s 16
REASONS FOR DECISION
15 September 2008 Regina Perton 1. Michael Mifsud, who is 56 years old, spent eight years in the Australian Army (the army) from 1969 to 1978. Three years of his infantry service were full-time and the balance part-time. Mr Mifsud suffers from hearing loss. He attributes that loss to his army service.
2. Mr Mifsud now requires a new hearing aid and believes the Military Repatriation and Compensation Commission (the Commission) should pay for it. The Commission does not agree, stating that his military service contributed to a very small degree, if any, to Mr Mifsud’s current hearing problems.
3. In deciding whether the Commission should pay for the hearing aid, the Tribunal considered the nature and causes of Mr Mifsud’s hearing impairment and the contribution to that condition that resulted from his army service. On 14 July 2008, the Tribunal affirmed the Commission’s decision and gave its reasons orally. Mr Mifsud has now requested that the Tribunal provide written reasons for the decision.
Evidence Concerning The Nature And Cause Of Mr Mifsud’s Hearing Impairment
4. Mr Mifsud undertook a weapons training course in 1975 during which he fired missiles from a man-portable anti-tank and anti-aircraft weapon named the Carl Gusted. The firing of the weapon resulted in tinnitus and had an impact on his hearing. Mr Mifsud received a small amount of compensation for his injury and, in the 1980s, the Department of Veterans’ Affairs paid for a small hearing aid. Mr Mifsud attributes his current significant hearing loss to the repeated firing of the Carl Gustaf.
5. The medical examination on Mr Mifsud’s entry into the army in 1969 does not indicate any problems with hearing. On his departure in 1975, there are results noted of an audiometric examination. Mr Mifsud lodged a claim for compensation in October 1993. He claimed that his ears were ringing severely after a weapons course. He had been advised by a medic corporal that the problem would go away but it had not. After the delegate rejected Mr Mifsud’s claim, a reviewing officer determined that Mr Mifsud had suffered a sensori-neural hearing loss of 1.3% due to his army service and that he would be paid lump sum compensation of $254.80.
6. In March 1995, after receiving a letter of support from Mr Mifsud’s then treating specialist Dr Boman Irani, Mr Mifsud received approval for a hearing aid for his left ear. The Comcare delegate indicated that:
I note that the Department of Defence has accepted liability for 1.3 percent hearing loss. Normally, liability for a hearing aid would not be accepted. However, in the Interest of Natural Justice, liability for the once only funding of a hearing aid is accepted.
Acceptance of liability for a hearing aid does not include any ongoing liability. Any future need for hearing aids (replacement or repair) or other devices due to your current loss of hearing or any deterioration in your hearing is your responsibility.
7. Mr Irani wrote to the Department of Defence in August 1996 on Mr Mifsud’s behalf. Mr Irani stated that Mr Mifsud’s hearing had deteriorated considerably since November 1995. Mr Irani indicated that Mr Mifsud required a stronger hearing aid and asked that the Department bear the cost. Dr Janice Milhinch, audiologist, also wrote a letter of support dated 3 September 1996 in which she reported a sudden rapid deterioration of unknown aetiology in Mr Mifsud’s hearing. She stated that the hearing aid fitted in 1995 could not be adjusted to meet Mr Mifsud’s current needs and sought a refund for him for his newly fitted intracanal hearing aid. The Department rejected the claim for a replacement hearing aid.
8. On 7 February 2003, Mr Mifsud again sought financial support for the purchase of an upgraded hearing aid. He stated that in April 2002, Dr Milhinch had told him his hearing was deteriorating further and that he needed a new hearing aid because the current aid was old. His request was rejected on 17 February 2003.
9. Dr Milhinch provided a letter of support dated 9 May 2003 indicated that Mr Mifsud had attended her clinic in 1987 and 1996 and his hearing had now deteriorated to the point where he needed a new hearing aid that better met his needs.
10. Lys Allison, audiologist, in a letter to the Commission dated 7 October 2004, indicated that Mr Mifsud had been attending her clinic since June 2003. She noted that he was suffering hearing loss in both his ears. She indicated that she was unable to report on the relationship between Mr Mifsud’s hearing loss and his army service.
11. On 1 November 2004, Mr Mifsud lodged a formal claim for permanent impairment and medical expenses on advice from a Returned and Services League representative for his deafness in both ears. On 17 December 2004, the Commission advised him that as he had already been awarded compensation, he could not claim medical expenses again. In May 2007, after Mr Mifsud had provided a quote for a hearing aid for his right ear, the Commission again refused to fund the hearing aid. Mr Mifsud sought internal review of the decision in which he stated that his right ear was his better ear and he needed a new hearing aid to enable him to continue working. The review officer affirmed the decision rejecting his claim on 9 July 2007. Mr Mifsud lodged an application with the Tribunal on 16 July 2007 seeking review of the review decision.
12. Dr John Redhead, an ear, nose and throat surgeon, provided a report dated 29 October 2007. The result of a hearing test conducted on 24 October 2007 was attached. Dr Redhead reported that:
Mr Mifsud….stated that in the early 1970s he was exposed to noise and on one occasion he fired three missiles from a rocket launcher. Following this firing he experienced tinnitus in both ears and then a loss of hearing in the left ear. The tinnitus occurred several days after the firing and he is unsure when the hearing loss occurred.
…
… The audiogram dated 17th February 1975 shows a minor loss of hearing at 5,000 and 1,000Hz. He has normal hearing at 2,000, 3,000 and 4,000Hz.
The percentage loss of hearing according to the NAL 1988 edition is 1.1%.
… This hearing loss is not related to firing of a rocket or gun fire.
…The audiogram taken on the 30/9/87 does not reveal a deterioration in the applicant’s hearing from 1975. In fact the hearing loss at 5,000 and 1,000HZ has now returned to normal. A hearing loss was demonstrated at 6,000 and 8,000Hz which was not tested on the 13/2/75.
…
…The sudden deterioration in hearing in his left ear in 1995 may have been the result of a viral illness, vascular spasm, or endolymphatic hydrops. I note that a CT Scan has excluded a tumour of the auditory nerve.
…The hypothesis that noise induced hearing loss deteriorates after exposure to noise, has been suggested in publications in the otological literature. However other studies have not confirmed this hypothesis. It is possible that noise induced hearing loss by causing a deterioration of the tissues of the inner ear, may pre dispose the ear to a more rapid hearing los from aging or vascular insufficiency.
...
Had noise exposure occurred as a result of his Army service then I would expect a loss of hearing at 4,000Hz to be demonstrated in this test. Therefore I believe his current requirement for a right hearing aid is not related to his Army service between 1969 and 1968 [sic].
13. Mr David Marty, also an ear, nose and throat surgeon, provided reports dated 15 January 2008 and 13 March 2008. In the first report, Mr Marty noted that an audiogram that day indicated that Mr Mifsud has significant high frequency loss in the right ear and a severe flat hearing loss in the left ear consistent with previous virus or vascular damage to the ear. In the latter report, Mr Marty stated that:
I have no doubt in my mind that the artillery used by Mr Mifsud during his military service could have potentially caused noise induced hearing loss. However the pattern of hearing loss in evidence today is not consistent with noise damage and the asymmetry of the hearing indicates a medical cause of unknown origin that seemed to occur back in 1995. It is well established that noise induced hearing loss damage occurs at the time of the noise exposure and is not an ongoing process. While I do not have any evidence to support that Mr Mifsud’s hearing loss is directly related to noise exposure during his military service, on the contrary I do not have any evidence either to suggest that perhaps some small component of his hearing loss be related to his noise exposure in the Army.
14. At the hearing, Mr Mifsud maintained that his hearing loss was the result of his army service. He described the difficulties he had experienced in current and previous employment due to his hearing problems.
Consideration Of The Issues
15. Section 16 of the Safety, Rehabilitation and Compensation Act 1988 provides for the payment of medical expenses in relation to an injury where those medical expenses are for treatment that it was reasonable for the employee to obtain in the circumstances. The Department accepted liability in 1993 for a 1.3% hearing loss in Mr Mifsud’s left ear. He now seeks a hearing aid for the right ear, which was not the accepted injury.
16. The Tribunal gave its decision orally on 14 June 2008 at the conclusion of the hearing. The transcript of the oral decision follows:
MS PERTON: All right. I am going to …make…[the Reasons] … sound more personal to you…rather than going through every complexity of the law, I have tried to bring down my reasoning into…more layperson’s language…not lawyer language.
…[F]or me to decide in your favour, I have to be convinced that, on the balance of probabilities, that your current hearing problems and the need for the hearing aid are the result of the incident in the army with the Carl-Gustaf weapon…I do not have the legal authority to just make an order for you to get the hearing aid, regardless of why you have lost your hearing. I cannot just take into account your army service and so on. I have to be satisfied that the hearing loss, on the balance of probabilities, stems back to the incidents during your army service.
The evidence that I have got before me does not indicate that the major cause of your hearing loss was your army service. None of the hearing experts have stated that the likely cause of your current hearing status is due, except to a minor part of it, to your military service and the firing of the weapon some 30 years ago. The ear specialists have said that, while there may have been some damage due to shooting the Carl-Gustaf weapon, that that is not the cause of your current problems. Mr Marty, in a report dated 13 March 2008, said:
I have no doubt in my mind that the –
I am quoting him now –
I have no doubt in my mind that the artillery used by Mr Mifsud during his military service could have potentially caused noise induced hearing loss.
So he is saying that it could have caused some hearing loss:
However, the pattern of hearing loss in evidence today is not consistent with noise damage, and the asymmetry of the hearing indicates a medical cause of unknown origin that seemed to occur back in 1995. It is well established that noise induced hearing loss damages occur at the time of the noise exposure and is not an ongoing process.
And Mr Redhead, in his report, says that the hearing loss is not related to firing of a rocket or gun. That is back in – the different types of hearing loss at different levels would relate to the type of cause of the hearing loss. Mr Irani no longer has your early files from when he saw you before. There was a note when the commission issued a summons for Mr Irani’s files, and Mr Irani wrote back saying, “We have destroyed all your files from earlier,” because he had not seen you for more than 7 years, and there is a requirement that people hang on to their medical files for 7 years. In May ‘93, however, he wrote, in one of the reports in the T documents that, at that time – this is May ‘93 – you had a 3.7 per cent hearing loss, and obviously, it is much worse now.
While you are sure that the loss is due to the gun noise, the various specialists have said they do not think it was the major cause. They also say that the damage from the noise of the guns would have been shown up immediately. So for me to find in your favour, I would have to be satisfied that your opinion should be preferred over that of the ear specialists, and while I know you think they are wrong and you feel very strongly that the cause of your hearing loss is the gun incident, particularly given the fact that you say that you do not think there is anything in the family, I cannot be persuaded that all these ear specialists have got it wrong.
Now, maybe, in 20 or 30 years time, they will discover something different, but I can only go on the medical evidence there is now, and the medical evidence from Mr Marty, from Mr Redhead and from Ms Milhinch and various others – Ms Milhinch said she did not know, and that might be because she is not an ear specialist, but if I have got all the ear specialists saying that, “Yes, there is some hearing loss from the time you were you in the army,” but they are saying that something happened in the mid ‘90s, whether – they are not necessarily saying it is an ear infection, just that something happened in the mid ‘90s that made your hearing get a lot worse.
So I have got no choice, therefore, but to affirm the decision. In other words, I have to refuse your wish to have your hearing aids provided by the military commission, because I just cannot be satisfied, under the legislation as it is, that I can prefer your evidence to those of the ear specialists. So I am very sorry I am not going to be able to help you.
MR MIFSUD: It’s okay.
MS PERTON: I think it is better that we did clear it up today, rather than we all dwell on it, and I hope that you can find the funds in some other way to get the hearing aid, because it will obviously assist you. I can understand you wanting to see if the Commission can pay, particularly given that you have had a lot of ear problems since you were in the army, but I just cannot go behind the medical specialists, and I have to prefer their evidence of the cause to your…strong belief, which, no doubt, you will not be happy about, but that is all I can do….I hope things do not get any worse for you hearing-wise, and I really admire your dedication and your hard work and your wish to work, and let’s hope that that can continue.
MR MIFSUD: Thank you.
…
DECISION
17. The Tribunal affirms the decision under review.
I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Mara Putnis
Clerk
Date of hearing: 14 July 2008
Date of decision: 14 July 2008
Date of written reasons: 15 September 2008
Advocate for the applicant: Self-represented
Counsel for the respondent: Mr A Moulds
Solicitor for the respondent: Australian Government Solicitor
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