Mitchell v SR & JA Carey Pty Ltd - [2021] NSWPIC 56

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mitchell v SR & JA Carey Pty Ltd [2021] NSWPIC 56
APPLICANT:	Howard Mitchell
RESPONDENT:	SR & JA Carey Pty Ltd
MEMBER:	Mr Michael Perry
DATE OF DECISION:	31 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for reimbursement of medical expenses under section 60 of the 1987 Act for purchase of hearing aids in 2009 based on industrial deafness injury of 30 June 2000; claim made in 2019; history of substantial non -1987 Act employment and self-employment before and after 1987 act employment; Murphy v Allity and Kooragang v Bates discussed; Held- the 2009 hearing aids were reasonably necessary as a result of the 1987 Act noise exposure; respondent ordered to pay the applicant $5000 in reimbursement for his purchase of those hearing aids.
DETERMINATIONS MADE:	1. The naming of the respondents is to be amended, wherever it or they appear, to be SR & JA Carey Pty Ltd. 2. The applicant sustained an injury, being a loss of hearing which is of such a nature as to be caused by a gradual process. 3. For the purposes of the Workers Compensation Act 1987 (the 1987 Act) the injury referred to in paragraph 2 above is deemed to have happened on 30 June 2000 when he was employed by the respondent. 4. As a result of the injury referred to in paragraphs 2-3 above, it was and is reasonably necessary that medical or related treatment under s 60 of the 1987 Act, namely, the hearing aids purchased by the applicant on or about 6 May 2009, in the sum of $5,000, be given to the applicant. 5. The respondent is to pay the applicant $5,000 in reimbursement for the expense of purchase of the hearing aids referred to in paragraph 4 above.

STATEMENT OF REASONS

BACKGROUND

By letter of 5 July 2019 (the claim letter), the solicitor for Howard Mitchell (the applicant) sent a letter to icare Workers Insurance (the insurer) under the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 act) claiming three types of compensation under the Workers Compensation Act 1987 (the 1987 Act).
The claim letter alleged the applicant suffered an industrial deafness injury, deemed to have occurred on 30 June 2000, in the course of his employment with SR & JA Carey Pty Ltd (the respondent). The applicant firstly claimed compensation under s 66 of the 1987 Act in respect of 10.2% binaural hearing loss (BHL). Secondly, he claimed $5,433.80 compensation under s 60 of the 1987 Act for hearing aids as per a quote from “ihear”, dated 8 November 2018 (the 2018 hearing aids). Thirdly, he again claimed compensation under s 60 of the 1987 Act for “reimbursement of hearing aids in the sum of $5,000” as per a receipt from “Audio Clinic” dated 20 May 2009 (the 2009 hearing aids) attached to the claim letter.
The insurer wrote to the applicant under s 78 of the 1998 Act on 10 September 2019 disputing the third claim for the 2009 hearing aids (the s 78 notice). No dispute was raised with respect to the first and second claims. By an Application to Resolve a Dispute (ARD) dated 22 January 2021(ARD), the applicant then claimed compensation under s 60 of the 1987 Act in respect of $5,000 in respect of the 2009 hearing aids.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:

(a) Whether the respondent is estopped from arguing it is not liable for the cost of the 2009 hearing aids, given it agreed to pay the applicant compensation under s 66 of the 1987 Act as well as compensation for the 2018 hearing aids.
(b) Whether the applicant’s noise induced hearing loss (under the 1987 Act) materially contributed to the need for the 2009 hearing aids.

Matters previously notified as disputed

In the s 78 Notice, the respondent relied on s 60 (2A) of the 1987 Act, asserting it was not liable for the cost of the 2009 hearing aids as there had been no prior approval for them. The respondent also relied previously on an argument that the cost of the 2009 hearing aids “did not result in any commensurate benefit”. These issues were abandoned by the respondent at the conciliation and arbitration.

PROCEDURE BEFORE THE COMMISSION

I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the information supplied. I have used my best endeavours to bring them to an acceptable settlement. I am satisfied they have had sufficient opportunity to explore settlement and have been unable to reach an agreed resolution of the dispute.
Conciliation and arbitration took place on 2 March 2021. Joseph Hallion of counsel appeared for the applicant (who was also in attendance), instructed by Mario Bechelli, solicitor. David Andersen, solicitor, appeared for the respondent. With him, Nicole Scott, Shirley Hart, Perry Peralta and Ben Hooper also attended for the respondent. At this time, Mr Andersen presented, and stated he wished to rely on, written submissions. As a result, Mr Hallion applied to be allowed to prepare written submissions too. The parties then agreed all submissions should be in writing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) ARD and attached documents, and
(b) the Reply and attached documents.

Applicant’s statements 7 May 2020 and 29 December 2020

The whole of each of the applicant’s statements have been considered. The following is a summary. The applicant was born 24 January 1943. On 7 May he stated that the 2009 hearing aids he purchased “were not much good, particularly in the presence of background noise …”. They were purchased from Audio Clinic and were not as good as the (2018) hearing aids which “shut off the background noise … easier for me to hear … people in my vicinity … can hear on the phone quite easily”. In comparison, he had “difficulty … conducting telephone conversations …” with the 2009 hearing aids.

In his 29 December 2020 statement, the applicant noted that it was about 9 years after he purchased the 2009 hearing aids that he noticed “some technical problems” with them. He did not recall the particular problem but he did take them back to Audio Clinic. He believed he was told he would need to upgrade them. He could not then afford to do so, and did not obtain replacement hearing aids until after his solicitors sent the claim letter.

Applicant’s Notice of Injury and Permanent Impairment Claim Forms

The applicant’s Notice of Injury and Permanent Impairment Claim Forms, both signed by him and dated 5 July 2019, were attached to the claim letter. The Notice of Injury confirms the employer claimed against was the respondent, who employed him in 2000. He also noted in that form that he was a self-employed farmer from “1968 to date”, and worked with the respondent as a machine operator between 1997 and 2000 and then worked as an office cleaner between 2001 and 2003.

Dr Peter Macarthur Ear Nose and Throat (ENT) surgeon (29 May 2019 and 17 August 2020)

In his 29 May 2019 report, Dr Macarthur noted that he saw the applicant on 29 May 2019 and took a 15-20 years history of slowly increasing deafness, particularly in the presence of background noise, and that the applicant had worn hearing aids for about 10 years, with the latest pair worn for about 3 years. The applicant had also said that he did not feel the hearing aids are “much good particularly in the presence of background noise” (ARD 8-9). There was no tinnitus or vertigo or other significant ear, nose or throat symptoms. In 2018, he was hit over the head by a cow giving rise to concussion, but there was no change in his hearing afterwards. Dr Macarthur also noted the applicant’s father had a noise-induced hearing loss.

Dr Macarthur’s occupational history noted the applicant worked from 1961 to 1970 as a telephone linesman,1975 to 1980 as a self-employed tip truck operator, then from 1980 until 1985 with the “RTA… where he was exposed to the noise of rollers which were extremely noisy”. He was then employed by the respondent as a machine operator exposed to the noise of chainsaws, tractors and forklifts from 1997 to 2000 and had ear protection with ear muffs fitted to helmets which he wore whenever it was safe to do so. He worked eight hours per day, five days per week, estimating three to four hours per day as very noisy.

From 2001 until 2003, Dr Macarthur also took a history of the applicant being employed as an office cleaner, and that although he used a vacuum cleaner, it was not noisy.
Recreationally, the applicant had been exposed to the occasional noise of a motor mower and a whipper snipper and very occasionally a chainsaw. He had also fired .22 rifles and .303 rifles and shotguns, mainly to get rid of vermin or sick stock on his property; and “from 1970 up until the present … and continuing … been a self-employed farmer exposed to the noise of tractors, chainsaws, angle grinders and power tools…no ear protection…during this 49 year period he has been intermittently employed away from the farm…”

Dr Macarthur undertook a clinical examination and noted audiology testing undertaken on 29 May 2019 as well. These audiogram findings were attached to Dr Macarthur’s report.
Dr Macarthur concluded the applicant was suffering from a :
“…bilateral mid to high tone sensory-neural deafness, due in my opinion to exposure to loud noise in his work over a total of more than 40 years … last noisy employer was SR and JA Carey … in my opinion his employment there was employment to the nature of which the disease … is due … its tendencies, incidents and characteristics gave rise to a material risk of a noise-induced hearing loss …binaural percentage hearing loss is 26.8% reducing after …presbycusis to 11.3% …should be a 10% deduction … on the basis of an s 323 subtraction for his work as a farmer over the past 49 years … subtracting 1.13% … to give a figure of 10.17% … rounded to 10.2%”.
Dr Macarthur added that it was reasonably necessary for the applicant to have binaural digital hearing aids with dynamic feedback suppression, multi-channel programmability, digital noise canceller, anti-feedback manager and speech and noise management systems. Dr Macarthur opined that the applicant “would be reasonably assisted by the provision of such (2018) hearing aids as a reasonable form of medical treatment arising from the hearing loss he has suffered in the course of his employment”.
On 16 July 2020, the applicant’s solicitor wrote to Dr Macarthur, referring to his 29 May 2019 report, noting the applicant purchased hearing aids in 2009, and purporting to enclose a copy of “the audiogram that was obtained at that time” (the 16 July 2020 letter). Dr Macarthur was asked to opine whether the purchase of the 2009 hearing aids was reasonably necessary as a result of noise exposure during the course of the applicant’s employment; given the occupational history recorded in the doctor’s earlier report; and also noting:
“…only the employment with the RTA from 1980 to 1985 and … with SR & JA Carey from 1997 until 2000 is compensable under the legislation … provide an opinion as to whether the compensable exposure made a material contribution to the need for the hearing aids”.
Dr Macarthur responded to that request by a further report of 17 August 2020 stating:
“… the purchase of those (2009) hearing aids was reasonably necessary as a result of the noise exposure while working for the RTA from 1980 until 1985 and then working for SR & JA Carey from 1997 until 2000 … the compensable exposure to noise made a material contribution to the need for Mr Mitchell to have hearing aids in 2009.”

Oral evidence

Neither party sought to adduce oral evidence or cross-examine any witness.

Submissions for the respondent (RS)

The issue of whether the applicant’s noise induced hearing loss materially contributed to the need for the 2009 hearing loss encompassed whether the said cost was “reasonably necessary” and whether it was incurred “as a result” of a work injury within the meaning of s 60 of the 1987 Act. The occupational history noted by Dr Macarthur results in the applicant’s case involving “about 56 years of ‘noisy’ work, 8 of which were as a ‘worker’ within the meaning of the 1987 Act”.

The applicant told Dr Macarthur that he had been wearing the 2009 hearing aids for about 10 years and also that he did not feel they were “much good”, particularly in the presence of background noise. The unsatisfactory performance of the hearing aids now in issue is further detailed in par 6 of the applicant’s statement of 7 May 2020.

Only 8 out of 56 years of excessive exposure to noise occurred as a “worker” within the meaning of the 1987 Act. Accordingly, the loss due to excessive noise in employment as a worker comprises only 1.6% BHL.

While Dr Macarthur stated that the applicant would be reasonably assisted by the provision of binaural digital hearing aids, necessitated by loss of hearing sustained “in the course of his employment”, he made no attempt to indicate the basis upon which the applicant’s work as a “worker” made a material contribution to such need, nor did he address whether that necessity was extant as at 2009.

The above “problems” with Dr Macarthur’s report were pointed out by the respondent’s solicitor to the applicant’s solicitor by email on 12 June 2020, suggesting the applicant’s solicitor ask Dr Macarthur to address “whether the compensable exposure made a material contribution to the need for hearing aids”. This email also asserted that Dr Macarthur’s overall assessment of 10.2% BHL “contains a compensable component of 1.8% BHL only … not asked, and offered no opinion on, whether such has made a material contribution to the need for hearing aids”. The applicant’s solicitor wrote the 16 July 2020 letter but did not put the suggested question to Dr Macarthur.

There was a lack of any reasoning process to support Dr Macarthur’s conclusion that the exposure as a “worker” within the 1987 Act made a “material contribution” to the need for hearing aids in 2009. His report states he sighted a copy of an audiogram provided to the worker in 2009, and “… that representation … is false …”. Mr Andersen requested a copy of the 2009 audiogram and the applicant’s solicitors said there was no such audiogram. Dr Macarthur was made aware of this and said he did not really require a copy to provide his further report (Reply 1-14). Those communications took place one month before that further report “which inexplicably refers to an audiogram which he in fact never saw”.
The principle in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD49 at [57] – [58] (Murphy) is applicable to the present circumstances. The applicant only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary ‘as a result of’ the injury, that is, to establish that the injury materially contributed to the need for the surgery. The work injury does not have to be the only, or even substantial, cause of the need for the cost of the 2009 hearing aids (Kooragang Cement Pty Ltd v Bates (1994) 35NSWLR 452 (Kooragang).

The Commission cannot be satisfied that the work related noise exposure made a material contribution to the need for the 2009 hearing aids. The vast majority of noise exposure occurred while the applicant was self-employed. It cannot be found that the cost in issue was incurred “as a result” of work injury within the meaning of s 60 of the 1987 Act. Dr Macarthur has made no attempt to provide any reasons for his conclusion on this issue.

The respondent summarised in writing various further authorities (RS pars 23-25). I have considered those and it is not necessary to repeat that summary here. Dr Macarthur’s opinion is a bare ipse dixit and is not probative of the issue before the Commission

Submissions for the applicant (AS)

The applicant claimed compensation under s 66 of the 1987 Act in respect of a 10.2% BHL as well as s 60 expenses under the 1987 Act, namely, the 2018 hearing aids, in the sum of $5,433.80 and also reimbursement of the cost of the 2009 hearing aids, in the sum of $5,000. While no complying agreement under s 66A of the 1987 Act is in evidence, it can be inferred there was an agreement whereby the respondent was to pay the applicant lump sum compensation under s 66 of the 1987 Act in respect of the said 10.2% BHL.
It can also be inferred that this agreement was effected at a time before the respondent issued the s 78 notice on 10 September 2019 – disputing the applicant’s entitlement to reimbursement for the 2009 hearing aids. The reason stated in the s 78 notice was that the hearing aids were not reasonably necessary:
“… as a result of an injury because you lodged your claim … 10 years after the purchase of the hearing aids … furthermore … hearing aid … were not much good particularly in the presence of background noise … also Dr Macarthur reported … not all your hearing loss was due to … employment … history of … increasing deafness for 15-20 years … majority of this time would have been after you ceased noisy employment … at this … time you were unaware of your industrial deafness injury …”.

The agreement under which the respondent paid lump sum compensation of $6,630 in respect of 10.2% BHL and s 60 treatment expenses of $5,433.80 gives rise to an estoppel by convention. The agreement was “… a compromise of rights under the 1987 and 1998 Acts whereby the parties both gave up rights to have issues … determined …” J.C. Equipment Hire Pty Ltd v the Registrar of the Workers Compensation Commission of NSW & Anor (2008) NSWCA 43 at [75]. An estoppel by convention can arise if it is shown that the parties have adopted the alleged assumption as the conventional basis of their relationship.

Fundamental to the assumptions made in respect of the payment of lump sum compensation and the hearing aids “is a mutual acceptance of an injury … to give an entitlement to 10.2% BHL and which had made a material contribution to the hearing aids provided …”

The applicant also relies on the doctrine of “Approbate and Reprobate”. The respondent has also made an admission, having regard to the above agreement, noting Department of Education & Training v Sinclair [2005] NSWCA465 (Sinclair). The agreement in this case constitutes an admission to which “more than … slight weight … be accorded [sic]”.
There is no evidence to support the RS (pars 3-6) that “the applicant was a Commonwealth employer between 1961-70”. This period “forms part of the questionable mathematic the respondent relies for apportioning of hearing loss over 56 years as relevant … to the need for hearing aids [sic]”. The 10.2% BHL made a material contribution “for the need for hearing aids … was from the deemed date of injury of June 2000 which it presumably follows would follow applied to hearing aids post-dating the injury as is the case here in May 2009 [sic]”.

As to the “missing audiogram” referred to in the RS, Dr Macarthur states he was “informed” of the applicant purchasing a hearing aid but does not state he “sighted a copy of an audiogram”. In any event, Dr Macarthur advised it was not necessary for his opinion. Nor could it be necessary as the relevant date of injury was 30 June 2000 in respect of which the doctor had already opined resulted in a need for hearing aids.

As to the RS about whether the work related exposure to noise made a material contribution to the need for the hearing aids, and that the vast majority of noise exposure occurred while the applicant was self-employed – “identifying the last noisy employer is not concerned
with causation but attributing liability and to the extend non-Act exposure was a factor Dr Macarthur made a deduction for this based on the material made [sic]…”

The applicant’s statements and Dr Macarthur’s history provide a “fair climate” for Dr Macarthur’s opinion. A doctor “…does not need to provide elaborate or detailed explanations for his conclusion, one needs more than a mere ‘ipse dixit’ however where the factual basis of the opinion is unchallenged … and the expert conclusion is… unchallenged…” [sic].

As to the RS (par 22) – that the vast majority of noise exposure occurred while the applicant was self-employed - consideration should be given to BlueScope Steel (AIS) Pty Ltd v Sekulovski [2019] NSWCA 136; [2018] NSWWCCPD48 (Sekulovski). In that case, the same argument was advanced by the employer on weaker facts - a medical panel assessment of 1.9% BHL. The respondent’s approach to apportion the assessment of hearing loss made by Dr Macarthur over 58 years has no foundation or factual or scientific basis.

The hearing loss assessment is indicative at best and not conclusive as the respondent asserts. Whether hearing aids are reasonably necessary involves a qualitative evaluation as to the impact of the hearing loss on activities of daily living. Dr Macarthur’s opinion derives from the assumptions in the unchallenged history in the reports and the statements, most notably, hearing difficulties in the presence of background noise. This difficulty is reflected in the findings of the audiological tests, in particular speech discrimination and the specifications as to the characteristics the hearing aids should possess.

Respondent’s submissions in reply

There is no estoppel. Payment of compensation “at the very highest” amounts to an admission and is not to stand in the way of the Commission dealing with the substance of the matter (APD Snack Foods Pty Ltd v Vuic (BC8400314)). The insurer accepted the applicant’s claim for lump sum compensation plus the 2018 hearing aids – in accordance with a quote provided with the claim letter. That letter involved the ingredients of the lump sum compensation and acceptance of the payment for the 2018 hearing aids in accordance with a quote dated 18 November 2018. It was open and proper for the insurer to accept these items, but “carve out” the question of liability for the 2009 hearing aids.
The applicant’s evidence was and is incomplete on the critical issue. Also the reliance upon JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; 70 NSWLR 704 (JC Equipment) is misplaced. The principles of conventional estoppel are limited to the transaction the subject of the estoppel and that estoppel does not apply for all purposes. Thus, the acceptance of the lump sum claim and 2018 hearing aids does not extend to the claim for the 2009 hearing aids.

As to the merits, the respondent adheres to its primary submissions.

The AS (at par 3.16 – see par 36 above) are erroneous. They ignore the 16 July 2020 letter (ARD 23); also by reference to the email from the respondent’s solicitor to the applicant’s solicitor dated 12 June 2020. The applicant cannot at this late stage put in issue the correctness of RS pars 4-6.

The applicant’s attempt to answer the concerns expressed by the respondent about the viability of Dr Macarthur’s supplementary report (RS par 20; see par 27 above) is unexplained and unsatisfactory.

The AS conflate Dr Macarthur’s assessment of compensable lump sum compensation with the requirements for a finding that the need for treatment in question is “as a result of injury”. The applicant has overlooked or ignored the reasons provided by a Medical Appeal Panel in John Christopher Cuskelly v New England Milk Industries Pty Ltd [2020] NSWCCMA 2 (Reply 1-9; “Cuskelly”). This case explains how, in industrial deafness cases, separate periods of exposure to excessive noise gives rise to separate harm.

It was incumbent on the applicant to put on some expert opinion explaining how eight years of exposure as a “worker” within the meaning of the 1987 Act out of 56 years of total exposure made a material contribution to the need for hearing aids.

The applicant’s reliance on Sekulovski is misplaced. The facts and issues in that case are different from the present case. The entirety of the noisy work in that case, for 35 years, was for one employer. In the present case, only 8 out of the 56 years of noisy work attracted cover under the 1987 Act. Also, the mathematical approach sought to be deployed on behalf of the employer in Sekulovski was confined to the condition of presbycusis, not other non- compensable exposures to excessive noise. The so-called “mathematical approach” has nothing to do with presbycusis, but rather separate damage to the applicant’s hearing due to noisy work not attracting cover under the 1987 Act - the analysis carried out in Cuskelly.

In Sekulovski, there was acceptable lay and expert evidence which supported the claim, contrary to the situation in the present case.

The applicant has not answered RS par 25 (see par 30 above)

FINDINGS AND REASONS

The first issue– the estoppel submitted for the applicant

I reject the AS and accept the RS on this issue. The applicant’s reliance upon JC Equipment is misplaced. There were three distinct claims, or aspects of the claim letter. While there was no issue about the first and second aspects, it was reasonable for the respondent to “carve out” the question of liability for the third aspect - the 2009 hearing aids. They had been purchased about nine years before the sending of the claim letter.
While there was a receipt (dated 6 May 2009) attached to the claim letter, evidencing the applicant’s purchase of the 2009 hearing aids, Dr Macarthur’s 29 May 2019 report does not offer any opinion about whether the noise-induced hearing loss materially contributed to the need for the 2009 hearing aids. But on 17 August 2020, he opined that the purchase of the 2009 hearing aids “was reasonably necessary as a result of the noise exposure while working for …RTA from 1980 until 1985 and … (the respondent) … from 1997 until 2000”.
This opinion is insufficient for a finding that the parties “in fact adopted the … assumption … (that it followed from an acceptance of the first and second claim, that the third claim should also be accepted as well)…”. The respondent clearly disputed the 2009 hearing aid claim as early as 10 September 2019, well before Dr Macarthur’s second report.
The facts in JC Equipment were different to those in the present case. In JC Equipment, an acceptance by the employer of the degree of whole person impairment (WPI) for the purposes of a claim under s 66 of the 1987 Act was held also to constitute acceptance for purposes of a work injury damages claim. The Court of Appeal held that the employer was estopped from denying the degree of WPI in respect of one claim, when it agreed to the same degree of WPI in another claim. In the present case, while there is more than one claim, there are separate types of compensation. In JC Equipment, the matter in issue and the subject of the estoppel involved the same question - the degree of WPI. As was submitted by Mr Andersen, the Court of Appeal made it clear that the principles of conventional estoppel are limited to the transaction the subject of the estoppel, and that estoppel does not apply for all purposes. In my view, the respondent’s acceptance of the lump sum claim and the 2018 hearing aids in the present case does not extend to the claim for the 2009 hearing aids.
For the same reasons, I reject the AS in relation to “approbate” and “reprobate”. I do not believe there is any such approbation or reprobation in all the circumstances. I note the applicant’s submission that the date of injury was on 30 June 2000, and the 2009 hearing aids were provided after that date; and therefore, it must follow, in concert with acceptance of the first and second claims, that the third claim also should have been accepted and fell into the same category as those first two claims. But this ignores the fact that the respondent did not know about any claim until 2019. It also ignores the factual differences in the context of the issue, i.e. whether the noise-induced hearing loss materially contributed to the need for the 2009 hearing aids. The answer to that question or issue must depend upon an analysis of the evidence with respect to the 2009 hearing aids; and also a separate analysis of the evidence with respect to the 2018 hearing aids, even though the evidence to some extent overlaps each analysis.
Similarly, and for the same reasons, I believe that in the circumstances described above, there has been no admission, as described in Sinclair, in relation to whether the purchase of the 2009 hearing aids were reasonably necessary as a result of the injury.

The second issue - did the applicant’s noise-induced hearing loss materially contribute to the need for the 2009 hearing aids?

While this Commission is not bound by the rules of evidence, it is still required to draw its conclusions from material that is satisfactory, in the probative sense, to ensure conclusions reached by it are not seen to be capricious, arbitrary or without foundation or material (OneSteel Reinforcing Pty Ltd v Sutton [2012] NSWCA282 at [2] per Allsop P “OneSteel”). In OneSteel, Basten JA said:
“… once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself …”
Section 354 of the 1998 Act also needs to be borne in mind: the Commission should act on the evidence “according to equity, good conscience and the substantial merits of the case”. In CHEP Australia Limited v Strickland [2013] NSWCA351 at [54], Barret JA said that:
“… a failure of that kind might possibly be found if a central conclusion was based squarely on an expert opinion that was devoid of foundation and if, in addition, there was no other material before the tribunal capable of supporting the conclusion so that, as a matter of law, the conclusion was simply unavailable …”
The Commission is entitled to “rely on its expertise in understanding the evidence before it and in drawing appropriate inferences from the evidence” (Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD37 at [89]; noted by Roche DP in Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 (Jaffarie).) However, “it may not use its specialist knowledge or expertise to fill gaps in evidence for the purpose of establishing a causal nexus which is not supported by the evidence” (Jaffarie at [250]).
The answer to the question of whether the applicant’s noise induced hearing loss materially contributed to the need for the 2009 hearing aids is to be informed by an analysis of acceptable expert medical evidence – except to the extent that the necessary “causal nexus” is otherwise supported by the evidence. The only expert evidence is from Dr Macarthur. But I bear in mind that the Commission is not obliged to accept uncontradicted evidence of an expert witness (Perkins v Ceva Materials Handling Pty Ltd [2011] NSWCCPD 32 at [63]).
In Kooragang, the Court of Appeal held that the issue of causation must be determined in each case on its own facts. What is required is a “commonsense evaluation” of the causal chain, determined on the basis of the evidence including expert opinions (Kirby P at [810].
Dr Macarthur opined in his 17 August 2020 report that “the purchase of those (2009) hearing aids was reasonably necessary as a result of the noise exposure while working for the RTA from 1980 until 1985 and … for SR & JA Carey from 1997 until 2000” and that “the compensable exposure to noise made a material contribution to the need for Mr Mitchell to have hearing aids in 2009” (ARD 25). Any foundation or reasoning in support of such opinion is not expressed. But there is still a question of whether a sufficient foundation, or reasoning, for such opinion, can be inferred.
Dr Macarthur’s opinion in this respect needs to be read in the context of the question he was asked in the 16 July 2020 letter: “… In the circumstances are you able to provide an opinion as to whether the compensable exposure made a material contribution to the need for the hearing aids”. His opinion also needs to be read in the light of his 29 May 2019 report which records the “HISTORY” including the applicant’s “15-20 year history of slowly increasing deafness particularly in the presence of background noise …has worn hearing aids for about 10 years, the latest pair for about 3 years”. This implies a history of the applicant having “slowly increasing” hearing difficulties from about 1999 to 2009. There is some symmetry in this with the applicant, at least inferentially, purchasing hearing aids in 2009.
Dr Macarthur’s 29 May 2019 report also recorded a reasonably detailed “OCCUPATIONAL HISTORY”, and a physical examination of the applicant’s nose, post-nasal space, mouth, pharynx and ears. He also arranged for and considered the results of audiological testing. He opined that the applicant “would be reasonably assisted by the provision of such (2018) hearing aids as a reasonable form of medical treatment arising from the hearing loss he has suffered in the course of his employment”. He also specified that those hearing aids should have specific characteristics. While that testing was conducted and those hearing aids provided about 10 years after the applicant purchased the 2009 hearing aids, the same injury – on 30 June 2000 – is the underpinning basis for both the 2009 and 2018 hearing aids.
On 17 August 2020 Dr Macarthur clearly enough implied that he took into account the content of his 31 May 2019 report, and provided the 17 August 2020 opinion - that the purchase of the 2009 hearing aids was reasonably necessary and also as a result of - by only taking into account the applicant’s work with the RTA and respondent (the compensable exposure). In these circumstances, I do not agree that his opinion is a bare ipse dixit.
There was a hearing test conducted by Audio Clinic prior to the applicant purchasing the 2009 hearing aids on 20 May 2009 and the applicant purchased those hearing aids after accepting advice from an audiologist that he needed them (ARD 27). To the extent that this involves the acceptance of some hearsay, I note s 354 of the 1998 Act, the substantial merits of the case, and there not being any controversy about these aspects of the evidence. Although not of itself determinative, this evidence supports my view that the 2009 hearing aids were then reasonably necessary. My view also takes into account the expert evidence of Dr Macarthur that the 2009 hearing aids were reasonably necessary and also the relevant principles summarised by Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). It is at least implicit that Dr Macarthur believes these hearing aids were reasonably necessary to address the applicant’s hearing loss because of the “noise exposure” while working for the RTA and the respondent, including addressing his particular problem with background noise.
In my opinion, as at 20 May 2009 it was reasonably necessary that he have this treatment to alleviate his deafness condition – which, on the history taken by Dr Macarthur, the applicant had been experiencing, in a slowly increasing way, for about 5-10 years.
It would have been preferable for the evidence in the applicant’s case to have been more detailed. But after carefully weighing both sides of the argument, I believe this evidence is sufficient for me to be actually persuaded that he has discharged his onus of proof. There is no other evidence, either expert or lay, to contradict his case.
I also take into account the respondent’s understandable concern about Dr Macarthur noting “a copy of the audiogram that was obtained at that time which you have enclosed”, when no such audiogram was attached to his 17 August 2020 report. The 16 July 2020 letter did purport to attach an “audiogram that was obtained at that time”, and it can be inferred “that time” meant 2009, given that immediately preceding sentence referring to “our client purchased hearing aids in 2009”.
On 16 July 2020, Dr Macarthur’s secretary (Cheryl) emailed Kelly Tickle, who I infer is an assistant of the applicant’s solicitor, noting she was “wondering if the audiogram you said you had attached (to the 16 July 2020 letter) was the one done in 2009… if so… wasn’t attached. If you meant the one done at the time of our report I have a copy of that…”. At 9.00 am 17 July 2020, Ms Tickle emailed Cheryl in these terms: “looking at Mario’s letter it’s the one… done in 2009 but I can’t find it… leave it with me and will speak to Mario on Monday when he’s back in the office…”. However, Cheryl then emailed Ms Tickle later that morning at 11.29 am, to say “I did mention to Dr Macarthur … if he needed the audiogram to answer what was asked of him … he said he didn’t really. Therefore, I wouldn’t worry about trying to get a hold of it. I will leave it up to you of course, but that’s just what he said…”.
The respondent correctly submits that Dr Macarthur’s “representation in his report is false” in this respect. There is also no explanation, either in evidence or submission by the applicant’s legal representatives, about this false statement. The only submission made for the applicant is that the doctor does not sight a copy of the audiogram and in any event it was not necessary for his opinion.
While it would have been preferable for some further explanation to have been provided in the applicant’s case, I do not believe it is appropriate to go any further than this. There is no basis for, and the respondent, properly, does not put, that there was any deliberately false statement. There could be various reasons why Dr Macarthur, on 17 August 2020, wrote “… purchased hearing aids in 2009 and I note a copy of the audiogram that was obtained at that time which you have enclosed” - including some infelicity in the transposition during typing, of the formulation of the question in the 16 July 2020 letter and the 17 August 2020 report.
I also note that Dr Macarthur does not, at least expressly, purport to utilise or rely upon any 2009 audiogram. I appreciate that a reading of the whole of the 17 August 2020 report may allow for an inference that its opinion was based, at least partly, on that non-existent audiogram. But I do not think that is a likely inference – particularly when I take into account Cheryl’s email of 17 July 2020 11.29 am noting that Dr Macarthur had told her that “he didn’t really (need… the audiogram to answer what was asked of him)…”. This is hearsay. But it is evidence which the respondent has lodged relies on and I take into account s 354 of the 1998 Act to look at the substantial merits of the case. Also relevant to this aspect of the analysis is the absence of any opinion to the contrary, e.g. whether or not in these circumstances, Dr Macarthur was in fact able to express an opinion on whether the 2009 hearing aids were both reasonably necessary and also as a result of the noise exposure while working for the RTA and the respondent without a contemporaneous audiogram.
The respondent has accepted the applicant’s claims for lump sum compensation with respect to 10.2% BHL and the 2018 hearing aids. I will take that as an admission that the applicant does have a 10.2% BHL for the purposes of the 2009 hearing aids issue; but will only give it “slight weight” (Sinclair) for that purpose. This is consistent with the respondent’s submission, which I accept, that such an admission “should not be allowed to stand in the way of the Commission dealing with the substance of the matter”.
While it is entitled to “carve out” the question of liability for the 2009 hearing aids, that cost was claimed by the applicant in respect of the same injury underpinning its acceptance of those other two aspects of the claim. This is not to conflate the estoppel asserted by the applicant with this second issue. I have concluded there should be a separate analysis of the evidence with respect to the 2009 hearing aids, even though to some extent the evidence for that analysis overlaps the evidence with respect to the 2018 hearing aids.
I find that the injury giving rise to the claim for the 2009 hearing aids was the deemed injury date of 30 June 2000 as alleged for the applicant. So much seems uncontroversial. The s 78 notice refers to this date as the “date of injury” as well. There has been no submission for the respondent otherwise. In McGowan v Secretary, Department of Education & Communities [2014] NSWWCCPD 51, (McGowan) Roche DP stated (at [53-58]):
“… the disputed claim … was for lump sum compensation … and for hearing aids … s 66 talks about a worker who ‘receives an injury’ … being entitled to permanent impairment compensation. The ‘injury’ … is a loss … of such a nature as to be caused by a gradual process … s17(1) … Section 17 is not concerned with true causation of the relevant hearing loss but ‘proceeds on a series of fictions or assumptions’ … as Mr McGowan was employed by the respondent at the time he gave notice of injury, the injury is deemed to have happened at that time … is taken to have happened ‘as it were, in one blow’ …”

I appreciate the above passage deals with an anterior injury question rather than whether “noise induced hearing loss” materially contributed to the need for hearing aids. But there needs to be an injury upon which the analysis of the 2009 hearing aids issue can proceed. The industrial deafness injury of 30 June 2000, giving rise to claim for the 2009 hearing aids, cannot be ignored. Nor can it be ignored that the parties agreed this injury resulted in 10.2% BHL. But the answer to the question of whether that noise induced hearing loss materially contributed to the need for the hearing aids does not necessarily depend upon the amount of that loss. It is a relevant matter though, including because the respondent argues that “the vast majority of noise exposure occurred while the applicant was self-employed… Thus it cannot be found that the cost… was incurred as a result of work injury within the meaning of s 60…”.
The main difficulty I have with this submission is that Dr Macarthur, an expert ENT surgeon, has opined that the applicant’s hearing loss was “as a result of noise exposure while working for the RTA” and the respondent, and also that the 2009 hearing aids were reasonably necessary as a result of that employment related noise exposure, and that such reasonable necessity arose for the purposes of improving the applicant’s hearing (cf Sekulovski at [118] per Wood DP). Again, while this opinion is brief, I accept it as sufficient evidence when his two reports are read as a whole and in conjunction with the 16 July 2020 letter. And there is nothing to contradict this evidence. Nor is there any issue about his expertise.
There is also no medical evidence to support the RS that the “vast majority” of relevant noise exposure occurred while the applicant was self-employed. This raises the question as to whether I am able, after considering all the evidence, to form my own assessment of how much relevant noise exposure did occur in self-employment and how much occurred in work-related circumstances – up to 2009. It is my opinion, in all the circumstances of this case, particularly given the absence of any expert evidence to engage with Dr Macarthur’s evidence, I am unable to engage in such exercise.
For example, even if I did disagree with Dr Macarthur’s opinion about the “S323 subtraction for his work as a farmer over the past 49 years”, it is beyond power to substitute some other figure. But again, while relevant, the “relevant noise exposure” is not determinative of the critical question. In this regard, cases such as Kooragang and Murphy show that a common sense test of causation can be applied. These cases acknowledge that conditions such as industrial deafness can have multiple causes and that the work injury does not have to be the only, or even a substantial cause of, the need for hearing aids.
A central plank of the respondent’s argument revolves around the occupational history appearing to show the applicant only having minimal (8 out of 56) years amount of excessive exposure to noise as a “worker” within the meaning of the 1987 Act - and, accordingly, “the loss due to excessive noise in employment as a worker comprises only 1.6% BHL”. I do not accept this submission for the same reason appearing in the preceding paragraph. Dr Macarthur has considered this history with at least the same detail that the respondent’s submission is based on; and he finds the exposure to noise as a worker to be 10.2% BHL – and there is no expert evidence to the contrary. That does not mean that I accept Dr Macarthur’s assessment of 10.2% BHL either.
Also, with respect, there is a flaw in the respondent’s mathematical calculation in my opinion: it presumes that the 56 years of noise exposure, whether it be on the farm, in self-employment or employment under the 1987 Act, should be equally apportioned – where there is no reference in the history to any relevant noise between 1961 and 1970 when he worked as a telephone linesman, nor between 1975 and 1980 when he was self-employed as a tip truck operator. Dr Macarthur also expressed that the employment as a commercial and office cleaner between 2001 and 2003 was not noisy.
It is common ground that Dr Macarthur’s opinion is sufficient with respect to the 2018 hearing aids being reasonably necessary as a result of the injury. In the circumstances, particularly noting the date of injury being more proximate to the purchase of the 2009 hearing aids, it is not surprising that Dr Macarthur has expressed the opinion that the 2009 hearing aids are reasonably necessary as a result of the employment with RTA and the respondent.
I have taken into account the medical appeal panel decision in Cuskelly. While it does not deal with hearing aids per se, I acknowledge the principle that there has to be an appropriate adjustment for “employment outside the jurisdiction” - including as a farmer in the circumstances of this case (see also Schofieldv AbigroupLtd (2016) NSWSC 954). However, each case of this nature depends to a large extent upon its own facts and circumstances.
In the result in the applicant’s case, it is particularly significant that on 29 May 2019, he gave Dr Macarthur “…a 15-20 year history of a slowly increasing deafness, particularly in the presence of background noise…”. This places the onset of that increasing deafness between about 1999 and 2004. The applicant commenced employment with the respondent in 1997. So it is likely that such deafness came to the applicant either during or soon after that employment. While he was also exposed to relevant non 1987 Act noise exposure as a farmer before and after that, the evidence clearly enough actually persuades me that the 1987 Act noise exposure did materially contribute to his need for the 2009 hearing aids. When I apply the legal principles, in particular in Kooragang and Murphy, to the evidence, and for the reasons expressed above, I am actually persuaded on the balance of probabilities that the applicant’s noise induced hearing loss under the 1987 Act did materially contribute to his need for the 2009 hearing aids. Also, while I do not take into account the particular amount of 10.2% BHL in coming to my conclusion, I believe the applicant has suffered, for the purposes of s 60 of the 1987 Act, at least a material or significant hearing loss as a result of his 1987 Act employment.

SUMMARY

I find that it was and is reasonably necessary that the applicant was given medical or related treatment under s 60 of the 1987 Act, namely the 2009 hearing aids which the applicant purchased on or about 6 May 2009.
I also find that the reasonable need or necessity referred to in the preceding paragraph was as a result of the industrial deafness injury sustained by the applicant and deemed to have happened on 30 June 2000 when he was employed by the respondent.

I find that the applicant’s 1987 Act noise induced hearing loss materially contributed to the need for the 2009 hearing aids.

Michael Perry
MEMBER

31 March 2021