Mos and Comcare
[2002] AATA 950
•18 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 950
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/209
GENERAL ADMINISTRATIVE DIVISION )
Re Michael John Mos
Applicant
And Comcare
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date18 October 2002
PlaceKempsey
Decision The decision under review is affirmed.
..............................................
Ms S M Bullock
Senior Member
CATCHWORDS
COMPENSATION – Injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – Transitional Provisions – Whether notice of injury was served or deemed to have been served on the Commonwealth – Whether claim for injury was served or deemed to have been served on the Commissioner – Prejudice to the Commonwealth – Applicant's ignorance of compensation rights – Whether compensation payable.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 ss 53, 54
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 53, 54, 123A, 124
Compensation (Commonwealth Government Employees) Regulations Regulation 15(1)
Social Security Legislation Amendment Act 1986 (No. 33/1986)
Industrial Relations Legislation Amendment Act 1991 (No. 122/1991)
AUTHORITIES
Re VL and Commonwealth of Australia (1987) 13 ALD 447
Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470
Re Maple and Commonwealth of Australia (1987) 14 ALD 331
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Re Gaujenieks and Australian Airlines Ltd and Comcare (1990) 24 ALD 253
Comcare v Luck (1999) 29 AAR 403
Re McCarthy and Comcare (2002) 66 ALD 751
Johnston v The Commonwealth (1982) 150 CLR 331
Commonwealth of Australia v Connors (1989) 17 ALD 313
G C Singleton and Co Pty Ltd v Lean (Seymour) (1969) 43 ALJR 369
REASONS FOR DECISION
18 October 2002 Ms S M Bullock, Senior Member
This is an application for review to the Administrative Appeals Tribunal ("The Tribunal") made by the Applicant, Mr Michael John Mos, of the reviewable decision dated 16 October 2000 (T23) which affirmed the determination of 9 October 1987 (T18) that no compensation was payable for Mr Mos' hearing problems and perforated eardrum on the basis of medical evidence.
A Hearing was held before the Tribunal in Kempsey on 27 February 2002. Mr Mos was self-represented and provided oral evidence. Dr R L Carroll, Ear, Nose and Throat Medico-legal Consultant provided telephone evidence during the Hearing. The Respondent, Comcare, was represented by Mr G Johnson of Counsel. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administratrive Appeals Tribunal Act 1975 ("T Documents", T1–T24) and the following exhibits:
EXHIBIT NO DESCRIPTION DATE
A1 Applicant's Statutory Declaration 15 February 2002
A2 Repatriation Commission Decision granting a Disability Pension. 2 October 2001
A3 Letter to the Applicant from Mr S Collins, Officer in Charge, RAAF Health Records, Canberra. 14 November 2001
A4 Letter to the Applicant from Ms D Hopkinson, Manager, Department of Defence Health Records, Canberra. 13 December 2001
A5 Letter from the Applicant to Ms D Hopkinson, Manager, Department of Defence Health Records, Canberra. 2 January 2002
A6 Letter to the Applicant from Ms D Hopkinson, Manager, Department of Defence Health Records, Canberra. 11 February 2002
A7 Letter from Dr N J Willcocks, General Practitioner. 12 June 2001
R1 Respondent's Statement of Facts Contentions. 10 October 2001
R2 Additional Service Medical Records. Various
R3 Two reports (of the same date) from Dr R L Carroll, Ear, Nose and Throat, Medico-legal Consultant, with attached Audiogram. 26 July 2001
R4 Clinical Notes of Dr N J Willcocks, specially tabs 1, 2, 3, 5A, B, C & D. Various
R5 Letter to Dr R L Carroll from Phillips Fox Solicitors. 26 February 2002
ISSUES
The issues in this matter are:
(i) Whether or not Mr Mos complies with sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971; and if so,
(ii) Whether or not Mr Mos suffers a hearing loss or injury to his ears, causally related to his employment with the Royal Australian Air Force (RAAF) between 11 January 1977 and 10 January 1986; and if so,
(iii) Whether or not Mr Mos is entitled to compensation under the provisions of the Safety, Rehabilitation and Compensation Act 1988.
LEGISLATION
A decision in this matter requires consideration of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") and the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
Mr Mos made a claim for compensation on 31 July 1985, which was received on 8 October 1985, which brings consideration of this matter under the provisions of the 1971 Act. Section 53 of the 1971 Act, as it was in force at the time of Mos' first claim for compensation, dealt with the time requirements for notice of an injury. The 1971 Act included "ignorance" or a "mistake" as additional reasons for disregarding the statutory time limits on providing a notice of an injury. Section 53 of the 1971 Act as relevant stated:
"53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the occurrence of the injury;(b)if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
(c)if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
(2) This Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(b) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
(3) This Act does not apply in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by an employee, being a loss or damage that arose in circumstances referred to in section 28, unless notice in writing of the accident that resulted in the loss or damage was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the occurrence of the accident;
(b) if the employee was not, immediately after the accident, aware that the accident had resulted in the loss or damage-as soon as practicable after he became so aware; or
(c)if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
(4) Where-
(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;
(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,
the notice shall be deemed to have been served in accordance with that sub-section."
Section 54 of the 1971 Act dealt with claims for compensation. The Tribunal notes that both section 53 and section 54 of the 1971 Act were amended by the Social Security Legislation Amendment Act 1986 (No. 33/1986), which came into force on 1 July 1986, although the amendments were only significant in terms of section 54 of the 1971 Act. The Tribunal notes that the original determination in relation to Mr Mos' first claim was made on 9 October 1987, approximately two years after Mr Mos submitted his claim. In relation to the applicable sections in Mr Mos' matter, the Tribunal is of the view that the relevant legislative provisions are those which were in force at the time Mr Mos lodged his claim on 8 October 1985 (T10), having been signed by him on 31 July 1985. At that time section 54 of the 1971 Act stated:
"54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-
(a) in the case of a claim in relation to an injury to the claimant-(i)the period of six months commencing on the day of the injury; or
(ii)if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware;
(b) in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28-
(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or
(ii)if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.
(3) If the employee has died and the claimant is his legal personal representative making a claim in pursuance of sub-section (1) of section 55, the prescribed period for the purposes of sub-section (1) is-
(a) in the case of a claim in relation to an injury to the employee-(i) the period of six months commencing on the day of the injury; or
(ii)if the employee did not become aware before his death that he had sustained an injury-the period of six months commencing on the day on which the claimant became aware of the death of the employee;
(b) in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the employee-
(i)the period of six months commencing on the day on which the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(ii)if the employee did not become aware before his death that he had contracted a disease or suffered an aggravation, acceleration or recurrence of a disease-the period of six months commencing on the day on which the claimant became aware of the death of the employee; or
(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee, being a loss or damage that arose in circumstances referred to in section 28-
(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or
(ii)if the employee did not become aware before his death that the accident had resulted in the loss or damage-the period of six months commencing on the day on which the claimant became aware of the death of the employee.
(4) If the employee has died and the claimant is a dependant of the deceased employee claiming compensation in respect of his death, the prescribed period for the purposes of sub-section (1) is the period of six months commencing on the day on which the claimant became aware of the death of the employee.
(5) If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section (9), of section 37 or by virtue of section 44, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.
(6) Where-(a) a claim purporting to be a claim referred to in sub-section (1) has been served on the Commissioner;
(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section."
Regulation 15(1) of the Compensation (Commonwealth Government Employees) Regulations provides for the requirements of a notice. It stated:
" 15.-(1) The notice of an injury caused to an employee that is required to be served in pursuance of sub-section (1.) of section 53 of the Act shall state-
(a) the name, and the address of the place of residence, of the employee;
(b) the place at which, the date on which and time at which the injury occurred;
(c) the circumstances in which the injury occurred; and(d)whether any persons other than the employee were present when the injury occurred and, if known to the person serving the notice, the names, and the addresses of the places of residence, of those persons
..."
The Act commenced on 1 December 1988. Part 10 of the Act deals with transitional provisions, consequential amendments and repeals. Section 123A of the Act was introduced by the Industrial Relations Legislation Amendment Act 1991 (No. 122/1991) to overcome the contradictory interpretations by Tribunals of the transitional provisions in section 124 of the Act. The Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 1991 noted that the relevant amendments were intended to ensure: "that employees who were entitled to compensation under repealed Commonwealth workers' compensation legislation remain entitled to compensation under the CERC Act [Commonwealth Employees' Rehabilitation and Compensation Act 1988] and do not have to satisfy the tests of entitlement contained in the 1988 Act…[This section] makes it clear that a reference to an injury of the transitional provisions of the Act means an injury as defined in any of the repealed Acts as in force when the injury was suffered"
Section 124 of the Act contains the transitional provisions which pertain to injuries which occurred prior to the commencement of the Act on 1 December 1988. Section 124 of the Act states as relevant:
" (1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…
(10) Where:
(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;
that person is not entitled to compensation under this Act in respect of that injury.
…"
10. Mr Mos made a subsequent claim for compensation on 12 July 1999 which brought consideration of that claim under the provisions of the Act. Sections 53 and 54 of the Act as relevant state:
"Notice of injury or loss of, or damage to, property
53. (1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
Claims for compensation
54. (1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) Where a claim is given to Comcare, Comcare shall cause a copy of the claim to be given to:(a) where the employee concerned is or was a member of the Defence Force at the time when the relevant injury or accident occurred—the Secretary to the Department of Defence; or
(b) in any other case—the Secretary of the Department, or the principal officer of the Commonwealth authority or licensed corporation, in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
…"
11. Section 14 of the Act deals with compensation for injuries.
12. Section 16 of the Act deals with compensation for medical and other treatment expenses.
13. Section 19 of the Act deals with compensation payments for injuries resulting in incapacity.
14. Section 24 deals with compensation paid to claimants for permanent impairment.
BACKGROUND
15. The following information is provided by way of background.
Mr Mos was born on 13 December 1959 (T10).
Mr Mos enlisted in the RAAF on 11 January 1977 and was discharged on 10 January 1986 as a "leading aircraftman" (T16). Mr Mos undertook basic recruit training and furthermore discharged his duties as an airframe fitter. Mr Mos' duties included maintenance of the aircraft, Chinook Helicopters, and undertaking Search and Rescue missions.
On 15 April 1985, Mr Mos lodged a claim with the Repatriation Commission for acceptance of a perforated eardrum and loss of hearing (right ear) as being due to his service. The determination of the Repatriation Commission made on 13 February 1986 was that in respect of the claim for right conductive deafness, it was refused under section 107M of the Repatriation Act 1920 (T14, p35). The Delegate of the Repatriation Commission found that Mr Mos did not suffer from ear problems prior to enlistment and that he first suffered otitis media in 1980 and consequently suffered recurrences. It was further found that right conductive deafness was due to recurrent otitis media which led to perforation of Mr Mos' eardrum. The delegate accepted medical opinion that the underlying cause of the perforation of Mr Mos' ear was bacterial infection of mucus between the nasopharynx and the middle ear and not exposure to noise or blast injury. The Delegate furthermore accepted that the occurrence of otitis media on service was coincidental and had no relationship to any aspect of service (T14, p36).
On 31 July 1985, Mr Mos completed a claim for compensation under the 1971 Act for "Hearing loss and perforated ear drum" relating to an injury in July 1982. This hearing loss related to the period when Mr Mos was serving at the RAAF Base at Williamtown, New South Wales. Mr Mos noted in his claim that he worked as an airframe fitter close to the jet aircraft runway, working within a close area to the operating jet aircraft. In the claim, Mr Mos contended that because of the closeness of his work area to the runway, where "jet aircraft use full after burner to take off", this set of circumstances caused his right eardrum to perforate and aggravated his right ear to the stage of hearing loss. (T10, pp26,27)
On 9 October 1987, a Delegate of the Commissioner for Employees' Compensation determined that there was no liability for compensation in respect of Mr Mos' claim for hearing loss and perforated right eardrum. (T18) The Delegate noted that the National Acoustic Laboratories had commented in a report that Mr Mos' hearing loss and perforated eardrum were not due to noise exposure in his employment. It does not appear that Mr Mos sought any review of that decision.
On 12 July 1999, Mr Mos signed a further claim for compensation for hearing loss in the right ear (T19). He stated that the injury occurred or he first noticed the hearing loss in February 1980. In Mr Mos' initial claim completed on 31 July 1985, he stated that he had first noticed the symptoms of the injury in July 1982 (T10, p26). In the 1999 claim (T19), at Part 2 of the claim, Mr Mos noted that he had not claimed compensation before for such an injury or illness. The question also asked that if a claim had been made, when was that claim made and who did Mr Mos make a claim against (T19, p43).
In an attachment to the 1999 claim (T20, p44), Mr Mos noted that when he worked in 12 Squadron, having been posted on 24 April 1978, he underwent Chinook Helicopter training and worked in the main helicopter maintenance hanger. Ms Mos noted that during this period no hearing protection was provided. Mr Mos then referred to his posting to 481 Squadron Williamtown and his assignment to Search and Rescue duties. The Search and Rescue area was positioned, Mr Mos noted, in a mobile shed at the base of the main runway control tower, that being within 300 metres of the main runway. Mr Mos noted that he was placed on stand-by throughout the day or night. Again, he wrote that no hearing protection was provided. Furthermore, Mr Mos noted that he was required to fly with the helicopter as Rescue Crewman and again, no hearing protection was provided. Mr Mos stated that he was posted to ACMFO Sinai Israel on 28 October 1982, the flight which flew from Richmond, New South Wales, to Darwin non-stop then, after an overnight stopover, from Darwin to Singapore. He then flew on to Sri Lanka and then Sri Lanka to Bahrain and finally Bahrain to Elgora Sinai, each flight leg comprising of eight to 12 hours, again with no hearing protection being provided. The return trip again had no hearing protection provided. When working as an aircraft maintenance fitter at 481 Squadron Williamtown on 2 May 1983, Mr Mos was repairing Macchi Jet Trainer Aircraft and Winjeel Aircraft, in the maintenance hanger which was 300 metres from the main runway. There was no hearing protection provided here either, Mr Mos stated. Mr Mos noted that on 1 April 1985 he was assigned to work in the 481 Squadron Mirage Maintenance Tool Store, in the same type of hanger as the Macchi Hanger. Mr Mos recorded that there was also no hearing protection provided in that location (T20, p44).
On 4 August 1999, Mr Mos was informed by Mr A Morris, Delegate SRCA, that despite Mr Mos noting in his 1999 claim that he had not previously claimed for compensation, a claim had in fact been lodged by him for the same condition in 1985. The Delegate noted that the claim was fully investigated and denied on the basis that the condition was not due to noise exposure during Mr Mos' employment. The Delegate further noted Mr Mos had also made a claim to the Department of Veterans' Affairs but this claim had been denied, against a lesser standard of proof than that which was required by the Act and its predecessors. The Delegate wrote that if Mr Mos wished to pursue the matter he must provide a statement advising why there was no reference made to his previous claim and secondly, if he wished the decision of 9 October 1987 to be reconsidered, he would need to provide a statement outlining why he had not requested a reconsideration within 30 days of the original decision as was required by the legislation (T22).
On 16 October 2000, Mr P Ontong, Acting Director of Military Compensation and Rehabilitation Service wrote to Mr Mos referring to: Mr Mos' claim for compensation dated 31 July 1985 in respect of his hearing condition; the determination made on 9 October 1987 disallowing the claim; and, Mr Mos' subsequent claim for compensation dated 12 July 1999 (T23). Mr Ontong stated that he had decided to affirm the determination of 9 October 1987. Mr Ontong noted that Mr Mos had not provided a statement outlining any disagreement with the determination dated 9 October 1987, as he had been requested to do in a letter dated 4 August 1999. Mr Mos also had not provided a statement advising why he failed to make reference to his 1985 claim when claiming in 1999 and furthermore, why he had not requested a reconsideration within 30 days of the original decision of 9 October 1987. Mr Ontong disallowed Mr Mos' claim on the basis of the medical evidence. In this regard, a report dated 17 October 1985 by Dr Gardiner was referred to in which Dr Gardiner noted that Mr Mos had suffered from recurrent ear infection since 1980. Dr Gardiner had further noted that the perforation was undoubtedly as a result of these ear infections and the subsequent hearing loss was due to unavoidable scarring following the repair of the ruptured right eardrum. Dr Gardiner concluded that exposure to noise at Williamtown was difficult to implicate as Mr Mos had normal hearing in one ear. Furthermore, it was noted that in a National Acoustic Laboratories Report dated 16 September 1987, Dr Khan had stated that Mr Mos had a mixed hearing loss in his right ear following recurrent ear infection since 1980 until he had a successful tympanoplasty. Dr Khan concluded that the perforation in the right tympanic membrane was most likely the result of ear infections and not due to noise exposure. It was also the cause of Mr Mos' mixed deafness in his right ear (T17, T23).
On 13 December 2000 Mr Mos made an application for review to the Tribunal (T1). He stated that his complete medical records were not available to him or the relevant decision-makers at the Department of Veterans' Affairs. He also requested an extension of time to lodge his application for review in view of the difficulties in accessing his records.
EVIDENCE OF MR MICHAEL JOHN MOS
16. Mr Mos described his duties as an airframe fitter, including such tasks as maintaining various aircraft, refuelling and from time to time flying in various aircraft on Search and Rescue missions. These duties also included the start-up of aircraft. Mr Mos told the Tribunal that he would wear earmuffs for Search and Rescue missions and on start-up and landing procedures.
17. On 24 July 1979, Mr Mos was working at the 481 Squadron in Williamtown in Hanger 176, working on Iroquois and Macchi aircraft. Mr Mos was based at the Air Traffic Control Tower area in a demountable building which he estimated was less than 300 metres from the main runway. Mr Mos told the Tribunal that he was issued with noise reduction earmuffs which were worn on the tarmac but not while working in the hanger. His duties took him in and out of the hanger.
18. Mr Mos recalled that there were signs in some locations advising that workman should wear protective earmuffs. In the aircraft, when flying, he stated that he was provided with an intercom and microphone attached through the helmet. Mr Mos estimated that he wore ear protection five per cent of the time. He stated that there were no orders to wear ear protection or advice to wear them in certain locations. Mr Mos stated that ear protection was not standard issue, unlike work boots and uniforms. Yet, Mr Mos and the other men were expected to work in high noise areas.
19. Mr Mos told the Tribunal that he first experienced ear problems on 20 February 1980. At that time, Mr Mos experienced a discharge from his right ear. He consulted a medical orderly who syringed his right ear with warm water via a large needle like apparatus. Mr Mos described this procedure as very painful. He told the orderly that he was experiencing pain and was immediately referred to see the doctor the same day. Mr Mos was told that he had right otitis externa (T4, p7). Mr Mos does not recall any particular discussion with the doctor and reported back to work. He saw the doctor the next day, but again could not recall any particular discussion. The pain had settled by 28 February 1980, (T4, p8).
20. There were however, continual problems with the right ear, as is indicated by an entry in his service medicals on 3 March 1980. At that time, a wick that was kept in the ear was replaced. On 17 March 1980, Mr Mos believed that his ear was becoming better but still "pussy" (T4, p8). There are no further medical records of any treatment or consultations in relation to Mr Mos' right ear until 30 October 1980. The next relevant entry is 12 November 1980 when "Sofradex" ear drops were prescribed (T4, p8). Mr Mos thought that he continued to use ear drops and have wicks in his ear for some period. At that stage in late 1980, he was not aware of any hearing problem. Mr Mos estimated that he was continually seeing the medical orderly or the doctor between March 1980 and October 1980 because of his right ear. He did not attend a civilian doctor during this period as he did not believe that he was authorised to do so. Mr Mos did not think that his right ear condition settled until he had an operation in 1982 at the Royal Prince Alfred Hospital, Sydney. At that time, Mr Mos was told by a civilian doctor, to whom he had been referred by the RAAF doctor, that he had a perforated right eardrum.
21. Mr Mos told the Tribunal that when he went to the Sinai on 28 October 1982, he had no ear problems for six months. He believed this was because he was not exposed to high noise. When he returned to Williamtown after his peacekeeping activities in the Sinai, and returned to work in the high noise area, including participating in the Search and Rescue missions, he again experienced right ear problems. Mr Mos noted that he had a right Myringoplasty in August 1982. His right ear was syringed again on 7 February 1984.(T5, p11). Mr Mos told the Tribunal that he noticed hearing loss in his right ear, just prior to his discharge from the RAAF. It was explained to him by Dr Razmilic that he had hearing loss due to repeated middle ear infections. Mr Mos was told that the bones in his ear had "welded together", and this impeded his hearing.
22. Considering the evidence, Mr Mos stated that noise exposure during his RAAF employment, particularly at Williamtown, caused his hearing problem. The secondary limb of his contention is that he was mistreated by the orderly in February 1980 when his ear was syringed. Mr Mos told the Tribunal that he has tried to locate medical and other service records to indicate that the syringing of his ears had taken place in February 1980, in addition to other consultations. Mr Mos told the Tribunal that he did not claim medical mistreatment in his 1985 claims because he did not know at that time that he had been medically mistreated. Mr Mos stated that he had no help or advice about such matters, nor was he given advice about how to claim or who he should see in relation to claims of compensation. Mr Mos stated that he was young, aged in his 20s and did not know what was going on or how to access medical or other documents.
23. When Mr Mos made a subsequent claim on 12 July 1999 (T19), he stated that he did not mention the action of the medical orderly or that he had made a previous claim in 1985. On the 1999 claim form, Mr Mos acknowledged that he had ticked that he had not made a previous claim. Mr Mos told the Tribunal that he had completed the claim form in this way because he thought he had made a claim for military compensation, whereas he thought that the 1985 claim was different. It was pointed out to him by an RSL advocate that in fact he had incorrectly answered the question in relation to previous claims in the 1999 Claim Form.
24. In the first claim (T10), Mr Mos stated that he did not mention syringing of his ears or his operation because he believed that this would all be in his medical records and would be quite obvious to the person considering his claim. Mr Mos disagreed that the information in his claim form was not complete nor accurate and that what he was telling the Tribunal was invented after the claim. Mr Mos stated that he thought all his medical records would record his full medical history. He based this belief on the fact that everything that he did as a serviceman in the RAAF had to be documented by either himself or someone else supervising.
25. Mr Mos believed that there was a great deal of information missing from his medical records. For example, he noted that there was no record of follow-ups or reviews, when in the medical documents available there was specific notation that medical reviews should be undertaken at various periods. Mr Mos acknowledged that the Department of Defence, Health Records Section, could find no reason to explain any missing documents. Mr Mos referred the Tribunal to Exhibit A6, a letter to Mr Mos dated 11 February 2002, which was related to his question as to why, from his medical record entry of 30 October 1980, there was no further reference to treatment or consultation until 12 November 1980. The Manager of the Department of Defence Health Records Section noted that neither she nor the doctors could explain the reason that there was no mention made of any further treatment apart from that in the early 1980s. Mr Mos was informed by the Department of Defence, Health Records Manager that doctors wrote minimal notes in their consultation records but that after 1980, they were instructed for medico-legal purposes, that notes should be more extensive (Exhibit A6, pp2, 3).
26. It was put to Mr Mos that he knew of his hearing loss problems at least in July 1982 as he had recorded in his 1985 claim, yet he did not claim until July 1985 (T10, p26). Furthermore, in the 1999 Claim Form, Mr Mos put a different date for the commencement of his hearing problems, namely February 1980 (T19, p43). Mr Mos answered by stating that he did not know that he could claim compensation until July 1985. Mr Mos stated that he did not complete the documents making up the information to suit the particular purpose of obtaining compensation.
27. Mr Mos had noted in his first claim form in 1985 that it was July 1982 when he noticed the symptoms of his hearing loss and perforated ear drum because it was in that month that he had the perforated ear drum and required his first ear surgery. Mr Mos had put a different date for the commencement of hearing loss and ear problems in the 1999 claim form, noting that the problem had commenced in February 1980, because at that time he had more knowledge of the impact of the syringing of his right ear. Mr Mos also noted that in the 1985 claim form, there was not a great deal of room to write the reasons for his claim, although he acknowledged that he could have possibly fitted in that there was a difficulty arising from the syringing of the ears. Mr Mos believed that the 1985 claim form was sent to the Department of Veterans' Affairs for a pension. He believed that the 1999 claim was for military compensation. Mr Mos denied that he thought that by 1999, his unsuccessful 1985 claim would have been forgotten about.
28. In relation to his discharge health summary, signed on 12 November 1985, Ms Mos noted that he suffered hearing loss as per his service records (T12, p33). Mr Mos stated that he was approached to sign up again with the RAAF and had to do so by 10 January 1986. He was approached in July 1985 by the Defence Department asking what he was going to do. This had prompted him to make his claims, as at that time he found out more information about his entitlements.
29. Mr Johnson put to Mr Mos that on the medical evidence, noise cannot cause ear infections. Mr Mos explained his position that he had ear infections at Williamtown and no infections elsewhere. When he returned to Williamtown, he again had ear problems.
30. Mr Mos further noted that in relation to ear protection wear this was not standard issue, yet, when he did wear ear protection devices, he believed that the risk of cross infection was high.
31. Mr Mos told the Tribunal that since being employed by the RAAF, he has worked as a motor mechanic, worked in a factory packing goods and has a commercial driver's licence.
32. Mr Mos was referred to the Clinical Notes of Dr N J Willcocks (Exhibit R4) which noted on 4 December 2000, in a Medical Examiner's Certificate for the purpose of supplying medical information in relation to Mr Mos' application for a commercial driver's licence, that Mr Mos had normal hearing. Mr Mos was also noted by Dr Willcocks to have normal hearing in further Medical Examiner's documents accompanying an application for a commercial driver's licence, dated 22 September 1998 and 25 November 1999. In two applications to the Department of Transport to drive public passenger vehicles, dated 9 December 1996 and 9 December 1997, Mr Mos had indicated that he did not suffer from any loss of hearing. These applications included Part B signed by the legally qualified medical practitioner, Dr N J Willcocks, similarly dated 9 December 1996 and 9 December 1997 (Exhibit R4).
33. In response to questions concerning these seeming inconsistencies, when it was put to Mr Mos that he did indeed have a hearing loss which he had known about at least since 1982, Mr Mos stated that Dr Willcocks did not consider the hearing loss as significant in terms of the purpose for which there was medical certification being given-that is, in relation to Mr Mos' fitness to obtain a commercial driver's licence or a licence to drive public passenger vehicles. Mr Mos stated that he has been a patient of Dr Willcocks since he left the RAAF in 1986. Mr Mos did not agree that he was prepared to alter the facts to suit his own purpose at any particular time. Mr Mos stated that he asked Dr Willcocks about these matters and he followed his advice.
EVIDENCE OF DR R L CARROLL, EAR, NOSE AND THROAT, MEDICO-LEGAL CONSULTANT
34. Dr Carroll provided two reports both dated 26 July 2001 (Exhibit R3). In the longer of the two reports, Dr Carroll noted Mr Mos' belief that his duties as an aircraft mechanic at Williamtown exposed him to potentially injurious noise levels, such as through the noise of aircraft engines, hydraulic test rigs and air cabin pressurisation rigs. Dr Carroll noted that Mr Mos believed that he developed right otitis externa because of noise exposure. Mr Mos also believed that the ear syringing undertaken by an orderly for his otitis externa caused the perforation of his ear drum in February 1980 and that this then caused middle ear infection resulting in surgical intervention.
35. Dr Carroll noted in his reports that noise induced hearing loss is typically bilateral and symmetrical. He also noted that noise exposure causes sensorineural hearing loss and does not cause a conductive hearing loss, and that the majority of Mr Mos' hearing loss is of a conductive nature. Dr Carroll noted that the service documents do not reveal that Mr Mos had his ear syringed in February 1980. The record of 20 February 1980 indicates only that Mr Mos was diagnosed with otitis externa and no perforation or syringing was recorded. It was only on 14 July 1982 (T5, p9) that a perforation of the right ear drum was noted. The first and only documenting of syringing of the right ear occurred on 7 February 1984 (T5, p11), Dr Carroll noted. Dr Carroll opined that the observation made by Dr D J Gardiner on 17 October 1985 that exposure to noise at Williamtown was difficult to implicate in the hearing loss in the right ear was correct (T11, p30). The origin of Mr Mos' hearing loss is conductive and not sensorineural in nature, the latter being the only type of hearing loss induced by noise exposure, Dr Carroll reiterated.
36. Dr Carroll's diagnosis at the time of reporting is that Mr Mos now suffers from a mixed right hearing loss largely conductive. It is the result of chronic suppurative otitis media and/or its treatment. The condition is considered by Dr Carroll to be inactive and therefore stable. Dr Carroll concluded that there is a theoretical possibility of surgical improvement of the conductive component of Mr Mos' right hearing loss. It is unlikely however, that it would be completely successful and carries risks to the residual hearing in the right ear. In the absence of any documentation of the alleged injury in February 1980 from the syringing of Mr Mos' right ear, Dr Carroll opined that it is improbable that Mr Mos suffered an injury or aggravation arising out of or in the course of his employment.
37. At hearing, Dr Carroll stated that Mr Mos is an inactive chronic sufferer of otitis media in the right ear. Dr Carroll explained that otitis media is an infection in the middle ear which is usually contracted from a preceding upper respiratory infection. The infection spreads up the eustachian tube to the middle ear. An external ear infection, that is otitis externa, is outside the eardrum. It is actually a skin infection of the canal. Dr Carroll noted that Mr Mos has been previously diagnosed as suffering from both otitis externa and otitis media. "Otitis" simply means inflammation of the ear. Dr Carroll noted that either otitis media or otitis externa can cause discharge from the ear. It is also possible that an external ear infection, otitis externa, could be caused by the wearing of protective earmuffs. Dr Carroll noted that otitis externa could also occur as a result of a chemical intolerance causing infection of the outer ear. The chemicals would have to actually have contact directly with the ear or the side of the face, it could not occur just out of the atmosphere.
38. Otitis infection of the ear cannot be caused by noise, Dr Carroll stated. He reiterated that noise induced hearing loss is typically bilateral and symmetrical. The hearing loss is gradual and slowly progressive, beginning initially at 4,000 hertz spreading to adjacent frequencies initially upwards to 6,000 – 8,000 hertz and then eventually spreading back down to the lower frequencies (Transcript, p64).
39. In relation to the reporting of otitis media on the day after otitis externa was reported on 20 February 1980, Dr Carroll noted that this would be explained by the otitis media being overshadowed by a simultaneous otitis externa. In this regard, Dr Carroll opined that it is possible that otitis media was present and established, but overlooked however, because on occasions a patient experiences a secondary otitis externa by the skin of the external canal being irritated by the passage of purulent matter discharging from the middle ear as it passes over the external ear. It is possible also, Dr Carroll noted, to have otitis media without that continuing on to become a perforation. In the majority of cases, particularly those treated medically, they will resolve without perforation, Dr Carroll stated.
40. Referring to a conductive hearing loss, Dr Carroll explained that this occurs with the transmission mechanisms of sound and occurs either as a result of some obstructing lesion in the external ear, such as a deficiency or rigidity of the eardrum or when the chain of bones (the malleus, incus and stapes) that transmits sound vibrations across the middle ear is either stiff or interrupted by disease. A sensorineural hearing impairment arises either in the inner ear or the auditory nerve and leads to a defect in the receptor. It is this latter hearing loss, which Dr Carroll reiterated, is effected by noise. Mr Mos' main hearing loss is conductive in the right ear.
41. Dr Carroll noted that Mr Mos' medical records indicated that he had been seen by many doctors. Dr Carroll also noted that there was no record of a perforation in the right ear until 14 July 1982. Dr Carroll opined that a doctor examining the right ear would be able to see a perforation unless it was minute. If there was a perforation prior to 14 July 1982, Dr Carroll opined that it would have been detected and recorded. Dr Carroll is of the view that it was a middle ear infection which caused a perforation of Mr Mos' ear drum and this also appears to have interfered with the continuity or the mobility of his acicular chain. Dr Carroll opined that it was more likely that disease caused Mr Mos' hearing loss, but it is possible that a patient could incur further hearing loss from the attempts at management of the condition. Thus the surgical procedure of myringoplasty involves obtaining some of a patient's connective tissue and using that to "freshen up" the perforation margins (Transcript, p66). That is, grafting a piece of the patient's own tissue across the hole in the eardrum. Dr Carroll also noted that the significance of a scarred eardrum is that it indicates that there had been previous middle ear trouble, which has healed.
42. The notation on 7 July 1982 of the presence of granulation tissue, Dr Carroll explained, occurs as a result of the healing process. It develops as a response to the healing of an infection and, in Mr Mos' case, the granulation tissue is likely to have arisen from the underlying middle ear, then as it swelled up and protruded through the perforation, it was revealed in visualisation. Dr Carroll opined that the perforation of the right ear was always there but was sealed by granulation tissue as noted at a previous consultation. The perforation of the size illustrated would cause a hearing loss in its own right. In relation to Dr Carroll's view that granulation tissue had disguised the perforation of the right eardrum, the granulation on 7 July 1982 could have been present for a long period of at least weeks, but it could have been months or years. But back in 1980, the granulation did not exist, or it certainly it was not reported.
43. Referring to the syringing of Mr Mos' right ear, which Mr Mos believed occurred on 20 February 1980, Dr Carroll opined that syringing could cause infection to pass from the outer ear to the middle ear if the eardrum was perforated by syringing. If there was a perforation of the eardrum then that would be accompanied by considerable pain and one would suspect that something untoward had occurred, Dr Carroll stated. Dr Carroll reiterated that surgery itself can, on occasion, lead to some further hearing loss.
44. Flying overseas after Mr Mos' myringoplasty would not necessarily provide any indication that the procedure had failed. Furthermore, Dr Carroll did not consider that there was any medical mismanagement of Mr Mos' right ear condition. Syringing is a very commonly practiced procedure, he stated. It should be perfectly safe and is the preferred method of removing wax. Dr Carroll stated that since he commenced practice in 1970, he has seen a perforation of the eardrum from syringing on two or three occasions. He noted that medical orderlies or nurses can be trained to undertake this procedure and routinely do, citing the example at St Vincent's Hospital in Sydney where there was a wax clinic which was run, without supervision, by a nurse.
45. With all of the investigations being undertaken through February and March 1980, Dr Carroll indicated that he considered it unlikely that a perforation of the ear would be missed, particularly when he noted Dr Mackay's notes with an illustration demonstrating that there was 30 per cent of the ear drum deficient. Dr Carroll stated that a pinpoint perforation of the ear drum or a little slit in the ear drum without magnification could be missed, a perforation the size of that found by Dr Mackay, in Dr Carroll's opinion, could not be overlooked by any competent practitioner. On the evidence supplied by Mr Mos that having experienced extreme pain following the alleged syringing process in February 1980, and having been immediately referred to a doctor, Dr Carroll noted that if there was a perforation the doctor would have found it.
46. Dr Carroll concluded that the original graft as a result of the 1982 surgery was a failure and this led to a diminished vibrating area in the eardrum and hence some diminution in hearing. Dr Carroll stated that what happened with Mr Mos was that he probably had some impairment of the mobility of his acicular chain which was not rectified. He still has a significant conductive deafness in the right ear but no longer has the hole in the eardrum. Therefore, something is stopping the vibrations going from the eardrum to the inner ear, probably adhesions or calcification as a result of infection.
47. When Dr Carroll examined Mr Mos and tested his hearing in 2001, he had mixed hearing loss in the right ear which meant that there was sensorineural and conductive hearing loss. The sensorineural hearing loss could be the result of recurrent middle ear infections or the result of surgery. The sensorineural hearing loss was very slight but was there compared to the left ear. One cause of the sensorineural hearing loss could be noise trauma. Generally, in terms of noise trauma, before there is a permanent hearing loss from excessive noise each day, there is usually a temporary hearing loss and immediately after the cessation of the noise exposure there is gradual recovery. If the noise levels are excessive and continuing, again the hearing will be depressed and if this happens sufficiently, then the recovery becomes incomplete. The majority of hearing loss from noise occurs at the most sensitive levels between the first five and ten years of noise exposure.
48. Dr Carroll noted that the service records do not indicate any sensorineural loss. Dr Carroll referred to a Departmental Memorandum dated 13 August 1985, which dealt with sound pressure levels (T11, p31). In relation to a Mirage "taxiing past" a hanger with a sound pressure level of 84 decibels, Dr Carroll stated that that level would be acceptable without hearing protection. In relation to a Mirage "taking off in two's" with a sound pressure level of 96 decibels, that would be potentially dangerous, Dr Carroll stated. Mirage aircraft undertaking "touch and goes" with a sound pressure level of 92 decibels, would be potentially dangerous where there was continuous exposure over an eight hour day, not just from intermittent exposure. Dr Carroll noted that a person could take an 85 decibel sound pressure level for a full eight hour shift. However, every three decibels that the noise exposure was increased beyond that 85 decibel level, one would have to halve the duration of exposure. Dr Carroll noted that noise exposure of 95 to 105 decibels, as outlined in a comment from Flight Lieutenant J A Longrigg on 7 October 1985 (T11, p32), is potentially injurious to hearing if sustained for a sufficient length of time. If no hearing protection was worn, 95 decibels could be stood for 51 minutes and 105 decibels for 5 minutes, otherwise a person's hearing would be at risk. Suitable hearing protection would avoid hearing impairment, Dr Carroll noted.
49. Dr Carroll's overall impression in relation to Mr Mos' contention that his hearing problems were caused by his duties at Williamtown, was that Mr Mos' hearing loss could not be related to his employment at this location, other than to say that he had suffered continuing middle ear infections, which were nothing to do with his employment.
50. Dr Carroll considered the difference in hearing loss results taken at the time Mr Mos left the RAAF, as compared to the seeming improvement when his hearing was tested by Dr Carroll. Dr Carroll noted that there could be some improvement if he were suffering from noise induced hearing loss. The point was, however, that the hearing loss suffered in 1986 as tested, was conductive hearing loss and not sensorineural.
EVIDENCE OF DR N J WILLCOCKS, GENERAL PRACTITIONER
51. Dr N J Willocks provided a letter "To Whom It May Concern" dated 12 June 2001 (Exhibit A7). Dr Willcocks noted that Mr Mos has had a long standing perforation to his right ear. Dr Willocks also noted that the perforation was attributed to recurrent ear infections which presumably were middle ear infections. Dr Willcocks noted that there are potentially other causes for the perforation including ear syringing and trauma, both of these being well documented as causes of perforation. Dr Willcocks noted that Mr Mos had infections that only occurred at Williamtown and that the infections were referred to as outer ear or otitis externa infections which, as far as Dr Willcocks was aware, do not cause perforations (Exhibit A7).
EVIDENCE OF DR A E KHAN, CONSULTING EAR, NOSE AND THROAT SPECIALIST
52. Following an audiogram undertaken on 2 September 1987 (T17), Dr Khan reported that Mr Mos had a mixed hearing loss in his right ear following recurrent ear infections since 1980 until he had a successful tympanoplasty in 1984. A perforation in Mr Mos' right tympanic membrane was most likely the result of these infections and not due to noise exposure, it was also the cause of his mixed deafness in the right ear. An Audiologist noted in Dr Khan's report that Mr Mos had 12 months unemployment following discharge from the RAAF. He had been then self-employed for a nine month period as a motor cycle mechanic. He told the Audiologist that he wore earmuffs to protect his hearing when working as a motorcycle mechanic (T17, p40).
DR G C SLACK, EAR, NOSE AND THROAT SPECIALIST
53. Dr Slack reported on 27 March 1984 that Mr Mos had a right ear discharge 18 months ago and was referred to Dr G McKay at the RAAF Hospital, Richmond (T6, p18). Dr Slack responded that a right myringoplasty procedure was carried out. It was noted that Mr Mos' ear dried up for some time but commenced discharging approximately one month ago. Examination by Dr Slack on 27 March 1984 showed areas of thin scarring on the right tympanic membrane with a dry ragged posterior perforation. The audiogram showed a low tone right conductive hearing loss.
DR I RAZMILIC, EAR, NOSE AND THROAT SURGEON
54. There are a number of entries in the T Documents recording Dr Razmilic's involvement with Mr Mos. Dr Razmilic examined Mr Mos on 15 February 1984, who at that time was complaining of recurrent discharge from his right ear over the last 18 months. He had a right myringoplasty 12 months previously. On examination, there was a moderate, postero-superior perforation of the tympanic membrane but no evidence at that time of active infection. There was a mild, mixed type of hearing loss in the right ear. Dr Razmilic diagnosed right chronic otitis media and was of the opinion that Mr Mos was a candidate for a right tympanoplasty (T6, p17).
55. On 4 May 1984, Dr Razmilic examined Mr Mos who stated that he had no more problems since his previous visit approximately two months ago (T6, p19). The examination of his right ear indicated that the right tympanic membrane was scarred with a small posterior perforation. Clinically the hearing was within normal limits on the left with mild conductive hearing loss on the right. Mr Mos was considered a candidate for a myringoplasty.
56. On 11 July 1984, Dr Razmilic reported that Mr Mos had no ear trouble since his previous visit (T6, p20). Dr Razmilic noted a moderate sized posterior marginal perforation of the right tympanic membrane. He suggested that for his right chronic otitis media, Mr Razmilic should arrange an appointment for a right myringoplasty.
57. On 12 April 1985, Dr Razmilic reported that he had reviewed Mr Mos on 2 March 1985 following a right tympanoplasty which was performed on 15 August 1984. Examination showed that there was some scarring of the right ear but there was no perforation on either side and the eustachian tubes were patent (T6, p21).
SUBMISSIONS
58. Mr Mos contended that he submitted his claim for compensation in 1985 believing he was claiming to the Department of Veterans' Affairs (T10, p26). In relation to the second claim in 1999, he believed he was claiming for military compensation (T19, p43). Mr Mos stated that the process of claiming compensation was and is very disturbing for him and hard to follow because there were so many different authorities involved. There were even more back then than now. What Mr Mos wanted to concentrate on was the claim itself. He submitted that he was submitting a claim to a "Compensation Department" and the 1971 Act was now being pushed at him.
59. Mr Mos asked why the Claims Department at the time he submitted his claim in 1985, when claiming something that had happened in 1982, had not raised with him the lateness of the claim at the time of his claim. Had he been immediately notified by the Claims Department that his claim was late and he was not entitled to claim under the 1971 Act, then he would not have pursued the matter any further. Furthermore, when considering the 1999 claim, when Mr Mos advised in that claim that the incident causing his hearing loss occurred in February 1980, that again should have caused the then claims' authority to notify him that he was not entitled to the claim because it did not fall within the six month limit allowed between injury and claim. On neither occasion, Mr Mos submitted, did he receive notification immediately and clearly that he was outside the requisite time periods. Had he been notified, it would saved the Government and the taxpayer a great deal of money. Not only had the claims been accepted in 1985 and 1999 but the determining authorities went ahead and investigated the claims on their merits, providing him with their findings. How is it possible now, Mr Mos questioned, that he is not entitled to claim in the first place.
60. Mr Mos acknowledged that he had made mistakes in filling out various paperwork, but he also noted that there had been mistakes made on behalf of the Comcare solicitors. He also noted that there had been delays in him receiving the T Documents within 35 days and also he had not received Dr Carroll's report for the second telephone conference. That conference had gone ahead without Mr Mos having the information necessary.
61. Mr Mos submitted that this matter had two main issues, namely whether or not he was entitled to claim, and if he was, the other issue was how the perforation of his right eardrum and hearing loss came about and was it caused by his employment with the RAAF.
62. Mr Mos noted that Dr Carroll's evidence is that it is an impossibility for an external ear infection to cause perforation of the eardrum. This is confirmed by Dr Willcocks, General Practitioner. Mr Mos referred the Tribunal to the entry in his service medical documents of 20 February 1980 which noted that he had an external ear infection (T4, p7). On the next day, 21 February 1980, it is noted that Mr Mos had otitis media as well as otitis externa (T4, p8). Mr Mos submitted that between 20 and 21 February his eardrum perforated and something must have occurred to cause the eardrum to perforate otherwise he could not have had otitis media as well. The difficulty for Mr Mos is that the Defence Forces' Medical Records section failed to keep complete records of his medical treatment and reviews. Mr Mos explained that he had been brought up in the RAAF to record everything that he did. Everything must be documented thoroughly and he, in his position, was only dealing with aircraft. The doctors in the RAAF were dealing with people's lives. It was extremely upsetting that documents recording his treatment were not full and correct. There were so many incomplete records, Mr Mos submitted and this hampered Mr Mos considerably in his attempts to pursue his claims for compensation.
63. Mr Mos referred to his application to the Department of Transport for various commercial driver's licences. Mr Mos submitted that he did not lie on those applications about his hearing loss and also he was not lying about his ear being syringed on 20 February 1980. In relation to the licence applications, Mr Mos submitted that he had consulted with Dr Willcocks. Mr Mos contended that, in relation to his hearing impairment, Dr Willcocks had asked the question concerning Mr Mos' hearing: "Was it so bad that Mr Mos should not be provided with a licence?". Mr Mos further contended that Dr Willcocks advised him to complete the application form by writing "No" to the question as to whether or not he had a hearing loss. Mr Mos acknowledged, in hindsight, that he wished he had not answered in the negative. In fact, he should have answered "Yes" to the question as to whether or not he had a hearing loss. Mr Mos stated that he wished he had a lawyer of Mr Johnson's calibre to assist him at the time he was completing such documents. All Mr Mos did was to act on his doctor's advice and he thought this was the correct approach to take.
64. Mr Mos told the Tribunal that on some occasions he regretted ever having joined the RAAF because he felt as if he was doing the right thing in serving his country, yet now, because he had put in a claim for something which had happened during his period of service, he was being "kicked in the teeth for it". Mr Mos could not understand why he was unable to obtain compensation when the Department of Veterans' Affairs had granted him a Disability Pension because of the accepted disability of sensorineural hearing loss with tinnitus. This payment was backdated until 9 January 2001. Mr Mos was asking compensation from the government because he wished to obtain a lump sum payment compensating him for his hearing loss.
65. In relation to Mr Johnson's submission that the fact that Mr Mos was awarded a Disability Pension by the Department of Veterans' Affairs had nothing to do with military compensation, Mr Mos differed and submitted that it had everything to do with that Disability Pension being granted. He understood very clearly, he told the Tribunal, that he was not able to have two types of compensation for the one condition. Mr Mos submitted that the Department of Veterans' Affairs and military compensation are tied together.
66. In relation to Mr Johnson's further submission as to the error of law back in July 1985, in not refusing the claim because it was out of time, that issue had to be considered by this Tribunal on the facts and the merits, Mr Mos contended.
67. Mr Mos noted that Mr Johnson's submission was that if the Tribunal allowed the compensation claim to be accepted out of time, then the only issue in terms of compensation related to the claim for noise damage to his hearing. Mr Mos submitted in this regard that his duties at the RAAF Base, Williamtown, encompass the whole area of the base. The duties included guard duty and circumnavigating the base to check the buildings for any security issues, such as unlocked buildings. At any time during that period, Mr Mos submitted that his job also involved him being called to the Search and Rescue missions with helicopters. He could also have been in Hanger 176 where major maintenance was being carried out. Noise was a major issue in all Mr Mos' duties because, he submitted, noise was the one thing that caused his hearing loss. If there was no noise, there would have been no requirement to wear protective earmuffs. Mr Mos further submitted that if he had not had to wear earmuffs, then he would not have suffered an ear infection. He then might not have had to have the syringing in February 1980 which led to the right ear perforation which eventually led to surgery. It all flowed from the noise problem, as the contributing factor, Mr Mos contended. If it was not for the noise in Hanger 716, the noise at the base of the control tower where he was located for the Search and Rescue missions, or elsewhere on the Williamtown base, then, Mr Mos submitted, he would not have had the hearing problem in the first place.
68. Referring to Mr Johnson's reference to Dr Gardiner's report (T11, p30), Mr Mos submitted that Dr Gardiner is a General Practitioner. Mr Mos did not know what training Dr Gardiner had, but he submitted that it would be the same as his own General Practitioner, Dr Willcocks. Mr Mos submitted that the Respondent was relying unreasonably on Dr Gardiner's conclusion that the eardrum perforation was undoubtedly as a result of right ear infections. Dr Willcocks noted that external ear infection does not cause the perforation of an eardrum. Referring to Dr Khan's comments (T17, p40), he had made his conclusions based on incomplete medical evidence in 1987, Mr Mos submitted. Dr Khan had concluded that the perforation in the right tympanic membrane was most likely the result of infections and was not due to noise exposure. Mr Mos reiterated that the RAAF Health Records Section could not explain discrepancies in the medical records nor the fact there seemed to be missing documents and certificates. Thus, when Dr Khan undertook his examination of Mr Mos and provided his opinion, he did not have a full and true copy of all of Mr Mos' medical records. If he had had other documents, he may have provided an entirely different opinion.
69. Referring to Dr Carroll's evidence, Mr Mos noted that he had questioned Dr Carroll as to why in 1987, the National Acoustics Laboratory recorded that he had a 19.8 per cent hearing loss and that Dr Carroll had an assessment on 23 July 2001 reporting that Mr Mos had a 14.4 per cent hearing loss under the same scale (Transcript, p97). Mr Mos noted Dr Carroll's evidence that in readings of hearing loss, there is allowance for a three per cent discrepancy. In Mr Mos' case, there was a six per cent discrepancy. Mr Mos contended that his hearing has therefore improved since he has been away from the noise. Therefore, part of the hearing loss has to be attributed to sensorineural hearing loss, and cannot entirely be put down to conductive hearing loss.
70. Mr Mos concluded that the whole problem of his hearing loss occurred only at Williamtown, not at any other RAAF base. The noise levels described by the documents indicated that noise levels could, in certain locations, be twice the accepted level. When Mr Mos had his six month period overseas, he did not have any recurrence of his ear infections or any other problem. When he returned to the Williamtown base, then he again suffered the same type of ear infections and another skin graft had to be undertaken.
71. From the time Mr Mos left the RAAF, he had engaged in motor mechanics and other types of trades. He has not had to go and consult a doctor about any further ear infections, Mr Mos submitted.
72. Mr Johnson for the Respondent, submitted that much of what Mr Mos had contended reflected his misunderstanding of the differences between the veterans' entitlements legislation and compensation legislation. Furthermore, it also reflected a misunderstanding of the Tribunal's role upon application for review of a reviewable decision under the Act. What is decided under the Veterans' Entitlement Act 1986 is, Mr Johnson submitted, totally irrelevant to anything that Comcare has decided and also irrelevant to what was before the Tribunal.
73. In relation to the application for review to the Tribunal, Mr Johnson submitted that this is not a jurisdiction in which either side carries an onus of proof. For the Tribunal to decide the matter favourably to the Applicant, Mr Johnson submitted that the Tribunal would have to be persuaded that it is the preferable decision for that to occur.
74. In relation to the section 54 issue, Mr Johnson submitted that the Applicant must deal with issues raised by this provision in the 1971 Act. The fact that a delegate in 1985 or 1999 may have decided the matter on its merits without reference to section 54, makes no difference to what is before the Tribunal on review. Mr Johnson submitted that section 54 provides a statutory bar which is there and must be decided, not withstanding what had been decided earlier. Mr Mos was put on notice in the Respondent's Statement of Facts and Contentions that sections 53 and 54 of the 1971 Act need to be satisfied before one can come to a review on the merits of the matter.
75. Mr Johnson referred the Tribunal to the decision in Re VL and Commonwealth Australia (1987) 13 ALD 447, in which the Tribunal concluded that both the Commissioner and on review, the Tribunal, were required to consider the application of sections 53 and 54. This was so even if the Commissioner had not addressed himself at the time to the question of the application of sections 53 and 54. Mr Johnson submitted that there is considerable authority for the proposition that the Tribunal has an obligation to consider and decide that question and it would be an error of law not to fulfil the obligation once the question has been raised before the Tribunal. In Re VL and Commonwealth of Australia (supra), the Full Federal Court decision in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 was referred to as supporting this proposition. Clearly, Mr Johnson submitted, Mr Mos' claim was not made within six months of the Applicant, on his own evidence, experiencing difficulties back in 1980 or 1982.
76. Whether or not Mr Mos fell within the exceptions contained within subsection 124(6) of the Act, was a matter for the Tribunal, Mr Johnson contended. In this regard, Mr Johnson submitted that on the face of it there was some element of prejudice to the Respondent associated with the passage of time, particularly given there are allegations of missing records and what was or was not observed at medical examinations more than 20 years ago. In relation to whether there was a failure to submit a claim because of ignorance or mistake, the only explanation put forward by Mr Mos was that he did not know that he could make a claim until he was given certain information in about July 1985. Mr Johnson submitted that if the Tribunal accepted that explanation for the failure to proceed with the claim during the requisite timeframe, then it is possible that the "gateway of ignorance" could be passed through.
77. If the Tribunal was considering that there was an issue of mistake or ignorance, the Tribunal must deal with Mr Mos' credibility. Mr Johnson referred the Tribunal to the "ever evolving list of beliefs as to what caused his [Mr Mos'] deafness". Mr Johnson noted that the claims for compensation in 1985 and 1999 recorded the cause of hearing loss as being related to noise exposure only. Neither of the claims noted any issue of the syringing incident alleged by Mr Mos to have occurred on 20 February 1980. Neither of the claims made anything out of the use or non-use of protective earmuffs in the sense of them causing infections. Neither of the claims made any point as to the management of his right ear condition. Mr Johnson submitted that what Mr Mos believed to have been the cause of his hearing loss had not been answered with reference to anything other than noise during the course of his employment.
78. There are further credibility issues, Mr Johnson submitted, arising out of statements to the transport authority in New South Wales with respect to Mr Mos' hearing loss and his applications for driver's licences. Mr Mos had answered questions in applications for licences stating that he had no hearing loss. Dr Willcocks had also indicated no hearing loss and on Mr Mos' story, Mr Johnson submitted that Dr Willcocks was depriving the Department of Transport of an opportunity to make a judgement as to whether or not some small hearing loss was such as to have a bearing upon the issue of a licence. This evidence reflects very badly on Mr Mos' credit and reduces significantly, Mr Johnson submitted, what limited weight could be given to the speculative suggestions made by Dr Willcocks in his report, dated 12 June 2001, as to what may or may not have happened during the course of Mr Mos' employment with the RAAF in Williamtown.
79. Mr Johnson submitted that under the Act, the Tribunal has the power to review reviewable decisions and then, in the context of matters arising under the 1971 Act, there is an obligation for there to be a claim. Section 54 of the 1971 Act effectively makes the operation of the Act conditional upon there being a claim. In terms of the Regulations in relation to sections 53 and 54, Mr Johnson submitted that if the Applicant intended to claim compensation for an injury arising out of syringing of his ears or if he intended to claim compensation for an infection said to have been derived from sharing earmuffs or further, if Mr Mos intended to claim compensation with respect to any other particular event, including the management of his condition by the RAAF, those matters ought properly to have warranted separate claims, which would then have to be dealt with. Strictly speaking, Mr Johnson submitted, all that was before the Tribunal were two claims in relation to noise damage arising out of employment.
80. In relation to whether or not noise exposure was responsible for Mr Mos' hearing loss, Mr Johnson urged the Tribunal to accept the evidence of Dr Carroll, an expert in this field. Dr Carroll's opinion is that Mr Mos' hearing loss is not likely to have been due to noise. He notes, in reaching this opinion, that Mr Mos' hearing loss is not bilateral and it has a major conductive component. Dr Carroll had opined that the most likely cause for Mr Mos' hearing loss related to his ear infections in the right ear. Dr Carroll did admit a possibility that treatment in relation to the infections may have produced more damage or may have increased damage. If that had occurred, it did not occur to any significant extent, if it had occurred at all. Dr Carroll was only talking of possibilities and not probabilities, Mr Johnson submitted. The Tribunal in deciding such matters is concerned with the balance of probabilities and must be positively satisfied that the elements of liability are present before it can decide a matter favourably to the Applicant.
81. Mr Johnson submitted that the contention that Mr Mos' hearing problem is due not to noise but to the history of infection is also supported by Dr Khan, Ear Nose and Throat Surgeon (T17, p40). Furthermore, Dr Gardiner reported on 17 October 1985 (T11, p30), that exposure to noise at Williamtown was difficult to implicate in Mr Mos' hearing loss given that his view was that the right eardrum perforation was undoubtedly the result of ear infections.
82. While it may well have been that there was some noise associated with Mr Mos' employment as noted by Dr Carroll, the fact remains, Mr Johnson contended, that Mr Mos' hearing loss is not on the medical evidence a noise induced loss. Even if one were to assume that the working conditions could produce a noise loss, the simple fact is that on all the medical evidence and opinion such a noise induced hearing loss in Mr Mos' case was not present.
83. In relation to the question of protective earmuffs, apart from the jurisdictional issue in relation to the claim on such a matter, Mr Johnson did not want to encourage Mr Mos to make further claims to Comcare. The suggestion that Mr Mos' hearing loss came about by sharing earmuffs is speculative. This contention was made for the first time at the hearing, Mr Johnson submitted. It did not fit well with what Dr Carroll had to opine about the more likely role of upper respiratory tract infections and the totality of Dr Carroll's evidence in relation to the causation of otitis. In relation to Mr Mos' claim that his hearing loss was based on the alleged 20 February 1980 syringing of his right ear, there is no documentary support for this proposition, Mr Johnson further submitted. One is entirely reliant upon what Mr Mos has to say for the proposition that there was in fact a syringing in 1980. Mr Johnson contended that the Tribunal is entitled not to be satisfied that there was in fact a syringing at that time given the issues of credibility already raised by Mr Mos' evidence. Even if there was a syringing of the right ear at that time, and it caused Mr Mos pain, the fact of the matter is that there are many records in the T Documents of medical attendances upon Mr Mos in 1980, prior to the record of 14 July 1982, where a perforation was first noted (T5, p9). In none of the entries that occurred prior to that date is there any observation of a perforation. Dr Carroll gave clear evidence that he would have expected the perforation to have been visible on examination by a General Practitioner.
84. In conclusion, Mr Johnson submitted that it is simply not likely that any perforation was caused by syringing in February 1980 even if, contrary to the Respondent's submission, it was accepted that syringing occurred then. With respect to the suggestion that syringing caused the otitis to move from being an external otitis to an internal otitis, Mr Johnson submitted that there is no evidence of that being the case. There was no observation at the time of any perforation and when Mr Mos put it to Dr Carroll as to whether or not one could have been a possibility, Dr Carroll could do no more than say it was a possibility. Plainly, on Dr Carroll's evidence, he did not regard this scenario as a probability. Mr Johnson therefore, concluded that the determination under review should be affirmed.
FINDINGS
85. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and the case law.
86. Mr Mos completed his first claim for compensation on 31 July 1985, claiming that in relation to right hearing loss and a perforated right eardrum, that this had occurred in July 1982. This claim brought its consideration under the provisions of the 1971 Act. A threshold issue is whether or not under sections 53 and 54 of the 1971 Act either Mr Mos had submitted a notice of the injury as soon as practical under section 53 of the 1971 Act or a claim within six months under section 54 of the 1971 Act. These threshold issues, while noted by Mr Mos to have not been considered when he made this claim in 1985, nor indeed when he subsequently claimed compensation in 1999, must, in the Tribunal's view, be considered even though the issue of sections 53 and 54 was not dealt with at the time of the claims. The decision in Re VL and Commonwealth of Australia (supra) has been supported by other authority and in that particular case, it relied on the Full Federal Court Decision in Kuswardana v Minister for Immigration and Ethnic Affairs (supra).
87. Notwithstanding that Mr Mos acknowledged that he did not submit a notice of injury as soon as practical, nor did he submit his claim within six months of becoming aware of his hearing loss problem, that claim had been considered by the original decision-makers on its merit. It was unfair, Mr Mos had submitted, at this late stage in 2002, to apply sections 53 and 54 of the 1971 Act when they had never been applied to his 1985 claim. While the Tribunal can understand the logic in Mr Mos' argument, this is not the position under the law. The Tribunal notes that section 53 of the 1971 Act requires that a notice of an injury must be given. This does not appear to have been done by Mr Mos. There is authority, however, that where a document is lodged, such as the claim lodged by Mr Mos in 1985, then this can serve the purpose of both sections 53 and 54 of the 1971 Act; see Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470; Re Maple and Commonwealth of Australia (1987) 14 ALD 331. Also in the Federal Court decision in Comcare v Luck (1999) 29 AAR 403 at 417, French J dealt with this issue in the context of subsection 53(3) of the Act which is not substantially different from subsection 53(4) of the 1971 Act, when he stated:
"The question really then reduces to one of construction, namely whether the claim made under s 54 of the Act can also be characterised as "a notice purporting to be a notice referred to in [s 53]" for the purposes of s 53(3). In my opinion no narrow or technical construction should be adopted."
88. The Tribunal also notes the High Court decision in Johnston v The Commonwealth (1982) 150 CLR 331 at 342-343 in which it was noted that workers' compensation legislation is of a remedial nature and should be construed liberally.
89. The Tribunal finds that in Mr Mos' case, the information contained within the claim meets the requirements of the notice under section 53 of the 1971 Act and also meets the requirements of a notice as set out in regulation (15)1 of the Compensation (Commonwealth Government Employees) Regulations. Thus, the Tribunal is reasonably satisfied that the claim signed on 31 July 1985 constitutes a notice and a claim under section 53 and section 54 of the 1971 Act. The notice and the claim have been made three years after the initiating injury or incident.
90. The Tribunal then turns to whether the notice and claim should be construed to fall within the ameliorating provisions of subsection 53(4)(c) and 54(6) of the 1971 Act, as dealt with also under subsection 124(10) of the Act. Mr Mos' evidence was that he was ignorant of the possibility that he could claim compensation for his hearing loss until 1985 when he was considering whether or not to reenlist or to be discharged from the RAAF. He became informed of his rights at that point and hence made his claim. In Commonwealth of Australia v Connors (1989) 17 ALD 313, Northrop and Ryan JJ referred to Mr Connors not knowing of his right to make a claim for compensation and also not knowing of the requirements of giving notice within the time prescribed. In GC Singleton and Co Pty Ltd v Lean (Seymour) (1969) 43 ALJR 369 at 370, Barwick CJ stated:
"The ignorance must have occasioned the failure to proceed within the time fixed by the Act. This circumstance itself reflects upon the nature of the relevant ignorance. Ignorance of the existence of the Act or of the right to compensation which it gives or in particular of requirements as to the commencement of proceedings for compensation would be relevant ignorance."
91. Relevant to a finding concerning whether or not Mr Mos was ignorant of his compensation rights in 1985, is a consideration of his credibility. Mr Mos has stated that he did not know that he could claim compensation. In his second claim of 1999, he declared in that claim that he had not claimed compensation before. His answer to this seeming inconsistency lay in the fact that, on his evidence, he believed that his first claim was under the auspices of the Department of Veterans' Affairs and the second claim was made under the Military Compensation Scheme He believed he was answering truthfully when he declared no previous claim in his 1999 claim. This is despite the fact that in the 1999 claim form there is a requirement to inform, if there had been a previous claim and who the claim was made against. This acknowledges that claims could be made under difference auspices. The Tribunal also notes evidence from the documents that in applications for driver's licences, Mr Mos had recorded that he had no hearing loss at all. Clearly, Mr Mos has a hearing problem and he has known about this since the early 1980s. There were repeated applications for driver's licences in the documents through the 1990s and on each occasion, there was a declaration that Mr Mos had no hearing problem.
92. The Tribunal also notes Mr Mos' documentary evidence accompanying his 1999 claim that there was no ear protection available in the various locations where he undertook his duties. Yet in evidence to the Tribunal, Mr Mos stated that he did use ear protection, perhaps five percent of the time and also, for the first time that the Tribunal can note from the evidence, Mr Mos was ready to claim that his repeated ear infections were a result of cross infection from using protective earmuffs. Clearly, this oral evidence is inconsistent with the documentary evidence.
93. In the context of these clear inconsistencies and willingness to record different information on different occasions, which when looked at as a whole provides inconsistencies, can Mr Mos be considered to have been ignorant of his compensation rights in 1985? He was 26 years old at the time. It is possible that Mr Mos did not know of his rights and the Tribunal at this stage in the findings, is prepared to give Mr Mos the benefit of the doubt thus allowing him to fall within the ameliorating provisions of subsection 54(6) of the 1971 Act. Thus, the claim for compensation in 1985, while out of the six month time limit, can be deemed to be a claim within time because the Tribunal has found that Mr Mos was ignorant of his compensation rights. In terms of there being an issue of prejudice, there do seem to be gaps in the medical reports, but this is just as prejudicial to Mr Mos as it is to the Respondent. On this single point of ignorance, the Tribunal accepts Mr Mos' evidence that he was unaware of his rights to make a claim for compensation or that he was required to give notice of the injury to the Commonwealth within the timeframes provided under the 1971 Act. Thus, his circumstances come within the subsections 53(4)(c) and 54(6) of the 1971 Act and notice of the injury and claim for the injury are deemed to have been made within the relevant time frame.
94. The Tribunal now turns to decide whether or not the determination in relation to liability for compensation was correct in terms of the medical evidence.
95. Mr Mos had at the time of the claims suffered from conductive hearing loss of the ear. The medical evidence is clear that conductive hearing loss is not caused by noise exposure. It is noise exposure that lies at the basis of Mr Mos' claim. He believed in the first claim in 1985, that noise exposure was caused by his location at work and that this caused a perforated right ear. Mr Mos stated that he did not wear earmuffs as they were either not available or there were no signs up requiring their use. This is inconsistent with oral evidence to the Tribunal which Mr Mos later provided, in which he was trying to establish a causative link between his repeated ear infections and the use of earmuffs. The second 1999 claim records that there is hearing loss and notes no previous claim. The second claim refers to hearing loss as a response to the work in the RAAF as an airframe fitter. Furthermore, in Mr Mos' Statement at T20, noise exposure during his employment at Williamtown and during flights to and from Sinai without ear protection, is cited as the reason for hearing loss.
96. As the Tribunal understands Mr Mos' evidence, it is only in recent times that there has been a contention that syringing of the right ear caused an ear perforation leading to hearing loss in the right ear. In relation to the specific issue of the alleged syringing of Mr Mos' right ear in 20 February 1980, the Tribunal can find no evidence to substantiate this occurring at that time. In view of the many inconsistencies in Mr Mos' evidence, the Tribunal is not reasonably satisfied that his ear was syringed in 1980. Furthermore, the evidence is that an ear drum perforation in the right ear occurred in 1984 and not in 1980 as is asserted by Mr Mos. The expert opinion provided by Dr Carroll is preferred by the Tribunal, that if there had been an ear perforation in 1980, it would have been discovered at that time or in the many subsequent medical investigations between 1980 and 1984, when the perforation was actually discovered. Furthermore, the Tribunal accepts that a perforation of the size detected by Dr McKay indicating a 30 per cent deficiency in the eardrum, would most certainly have been detected.
97. Considering Mr Mos' recent contention that his right ear hearing loss occurred as a result of infections arising out of the use of protective earmuffs, the Tribunal finds this simply is inconsistent with Mr Mos' 1999 claim and the evidence that accompanied it, that there was no ear protection provided and that he did not wear it (T20, p44).
98. The fact that Mr Mos now has a Disability Pension arising out of the Veterans' Entitlements Act 1986 is not related to whether or not Mr Mos can claim compensation under the 1971 Act or the Act. The basis for granting a Disability Pension has a different set of legislative criteria than that required under the 1971 Act or the Act. Furthermore, the Tribunal is not aware of the reasons for the granting of the Disability Pension, the timing of the onset of the condition, the causative links between service and the disability, nor the contentions upon which Mr Mos based his claim for Disability Pension.
99. Relying on the whole of the expert medical evidence available to the Tribunal and Mr Mos' evidence, it is the Tribunal's finding that Mr Mos' hearing loss occurred as a result of many ear infections which then caused conductive hearing loss. The conductive hearing loss is not typical of noise induced hearing impairment and this is accepted by the Tribunal on the basis of the predominance of medical evidence in this case. Furthermore, Mr Mos' hearing loss is not bilateral, which is usually indicative of a noise-induced hearing loss. While Dr Willcocks has provided a proposition that the potential for perforation of the ear includes ear syringing and trauma, the Tribunal is firstly not aware of whether or not Dr Wilcocks had all of the medical evidence available to him as certainly Dr Carroll had. Furthermore, Dr Willcocks does not refer to the hearing loss as being conductive hearing loss as opposed to sensorineural hearing loss. Nor does he seem to be aware of the record of otitis media on 21 February 1980. While it is accepted by all medical opinion that otitis externa does not cause ear perforation, Dr Willcocks does not entertain the other reasons for otitis media infections causing ear perforation and hearing loss. Dr Willcocks' further proposition that syringing of Mr Mos' ear caused his right hearing loss, does not deal with the lack of evidence in relation to syringing and perforation in 1980, nor of the reported occurrence of the ear perforation in 1982, prior to the ear syringing in 1984. The Tribunal prefers the evidence of Dr Carroll, Mr Razmilic, Dr Gardiner and Dr Khan as opposed to that of Dr Willcocks, who it would seem on the documentary evidence, is prepared to say that in the context of driver's licence applications during the 1990s that Mr Mos has no hearing loss when clearly he has.
For all of the reasons set out above and on all of the medical, documentary and oral evidence, the Tribunal finds that Mr Mos' right conductive hearing loss is as a result of repeated ear infections which cannot be linked to his employment in the RAAF. Thus, under the 1971 Act, the claim made in 1985 and the subsequent determination in 1987 are found by the Tribunal to be correct. The determination of the 1999 claim made on 16 October 2000, which seems to have been treated by the Respondent as a reconsideration of the determination dated 8 October 1987, is also correct. Accordingly, for all the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 27 February 2002
Date of Decision 18 October 2002
Representative for the Applicant Self-Represented
Representative for the Respondent Mr G Johnson of Counsel
Solicitor for the Respondent Mr T Postman, Phillips Fox
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