Nguyen v Paragon Manufacturing Group Pty Ltd t/as Gem Windows & Doors
[2021] NSWPIC 430
•25 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Nguyen v Paragon Manufacturing Group Pty Ltd t/as GEM Windows & Doors [2021] NSWPIC 430 |
| APPLICANT: | Van Tram Nguyen |
| RESPONDENT: | Paragon Manufacturing Group Pty Ltd t/as GEM Windows & Doors |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 25 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the cost of hearing aids pursuant to section 60 of the Workers Compensation Act 1987; the applicant worker claimed he suffered industrial deafness which resulted in assessments of 0.1% bilateral hearing impairment (BHI) and 0% whole person impairment (WPI); the respondent’s independent medical examiner assessed 0% BHI and 0% WPI; the respondent asserted that the applicant had not suffered industrial deafness arising out of or in the course of his employment, or alternatively that the degree of such deafness did not materially contribute to the reasonable necessity for the supply and fitting of hearing aids; Murphy v Allity Management Services Pty Ltd, Diab v NRMA Ltd, Winters v Endeavour Energy and Bluescope Steel (AIS) Pty Ltd v Sekulovski referred to; conflicting audiograms; Held - finding that the audiogram relied upon by the applicant should be accepted, and that the industrial deafness suffered by the applicant materially contributed to the reasonable necessity for the cost of the hearing aids claimed by the applicant. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 31 July 2020. 2. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of s17(1)(a)(i) of the Workers Compensation Act1987. 3. The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury. 4. The respondent is liable for the cost of hearing aids. 5. The respondent is to pay the applicant for the cost of the supply and fitting of hearing aids on production of accounts and/or receipts pursuant to s 60 of the Workers Compensation Act1987. |
STATEMENT OF REASONS
BACKGROUND
Van Tram Nguyen (the applicant/Mr Nguyen) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of bilateral hearing aids to treat the industrial deafness (also known as “boilermaker’s deafness”) he claims he suffered whilst in the employ of Paragon Manufacturing Group Pty Ltd t/as GEM Windows & Doors (the respondent/ Gem). Mr Nguyen is still employed by Gem where he has worked as a machine operator since he commenced employment in December 2019.
The respondent does not dispute that the applicant’s employment is noisy, that is, employment to the nature of which the injury, loss, or further loss, of hearing was due (see s 17 of the 1987 Act). In its notice issued to the applicant on 22 October 2020 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) Gem’s insurer, iCare:
(a) does not agree that the applicant’s injury was received in the course of his employment by respondent as required by s 4 of the 1987 Act, and
(b) disputes that the treatment sought by the applicant in the form of the supply and fitting of the bilateral hearing aids is reasonably necessary as required by ss 59 and 60 of the 1987 Act.
In support of his claim Mr Nguyen relies on the opinion of Dr Thandavan B Raj, ear, nose and throat surgeon, in a report dated 3 June 2020, following an independent medical examination carried out on 2 June 2020[1], and a supplementary report of Dr Raj dated 13 August 2021[2]. The respondent relies on the opinion of Dr Peter Winkler, ear, nose and throat surgeon, in reports (x2) dated 30 September 2020 following his independent medical examination of the applicant on that day[3].
ISSUES FOR DETERMINATION
[1] Application to Resolve a Dispute (ARD) p 31.
[2] Lodged as a late document in the proceedings.
[3] Reply pp 16 and 18.
The parties agree that the following issues remain in dispute:
(a) whether the opinion of Dr Raj or Dr Winkler, based respectively of the audiograms carried out by those doctors on the days on which they examined
the applicant, should be accepted, and(b) if the opinion of Dr Raj is accepted, if the hearing loss due to industrial deafness diagnosed by him materially contributed to the need for the supply and fitting of the bilateral hearing aids claimed by the applicant.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 11 October 2021, conducted via telephone conference. Mr J Trainor of counsel appeared for the applicant, briefed by
Mr K Ton. The applicant attended on a separate line. Mr S Grant of counsel appeared for the respondent, briefed by Ms E Cotchett.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) further statement of the applicant dated 12 August 2021, and
(d) supplementary report of Dr Raj dated 13 August 2021.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
The applicant’s case
In his statement dated 5 November 2018[4] Mr Nguyen says that from about 2012 he worked as a full-time machine operator for a windows manufacturer named Southern Star, where he remained for four years. That was noisy employment. In 2016 he found a similar job with Crown Windows Pty Limited, where he remained until he was made redundant on 19 October 2018. That was also noisy employment, and Mr Nguyen says that he often experienced discomfort and ringing noise in his ears during the time he was working there due to exposure to constant excessive banging and cutting noises.
[4] ARD p 4.
In his further statement dated 12 August 2021 Mr Nguyen says that following his redundancy from Crown Windows Pty Ltd he found work as a machine operator with Gem in December 2019. That was also noisy employment. The applicant says that he operates a machine which cuts, presses, and joins metal window frames. Whilst in operation, the machine is very loud, and he is also exposed to the noise of machines positioned on either side of him which are also noisy. He says that whilst working, the noise is such that it is impossible to undertake a conversation in a normal speaking voice, and he has to yell in order to be heard. The machine is particularly noisy when metal frames are being cut, metal to metal. He continues to work in that environment.
Mr Nguyen says that he wishes to be provided with hearing aids, as his hearing is currently such that he has a lot of difficulty communicating with his friends and family. Further, if he wishes to watch TV or listen to the radio, he must turn the volume up which causes family members to complain about the noise. These matters cause him embarrassment.
Dr Raj’s opinion – report dated 3 June 2020
In this report Dr Raj records a history of employment which is relevantly consistent with that referred to above. He notes that Mr Nguyen worked for Crown Window for one and a half years from 2016 which was noisy employment, and that he has worked for Gem since 2019. Dr Raj says that both jobs are considered together as the job description was similar, and that Mr Nguyen has been exposed to noise for three years. On clinical examination, Dr Raj found that both tympanic membranes and ear canals were normal, tuning fork tests were normal, and that the rest of the ENT examination was normal.
The audiogram conducted by Dr Raj on 2 June 2020, reproduced at the end of the report, shows that the applicant’s hearing thresholds at between 20-40dB in all frequencies, with a gentle slope from 30dB at 500 Hz to 40dB at 4000Hz. In his “Discussion of diagnosis and audiogram” at [3] in the report Dr Raj says that:
“Mr Van Tram Nguyen’s audiogram is not consistent with industrial [sic, deafness] particularly the flat profile. The hearing loss is mild in all frequencies. The air-bone thresholds are similar.
His noise exposure is only for 3 years. This duration of noise exposure in insufficient to cause any significant industrial deafness, and at the most a dip at 4000Hz.
Considering the duration of noise exposure and the high screeching noise of his cutting machine, I assess the loss at 4000Hz as due to industrial deafness. The mild losses in the other frequencies are of unknown undetermined pathology.”
When asked at [6] if injury was sustained through the applicant’s employment and an opinion sought about the last noisy employer Dr Raj says:
“Based on the history I have obtained from the worker, it is my opinion that the tendencies, incidents and characteristics of the worker’s employment with Gem Windows are such as to give rise to a real risk of boilermaker’s deafness of deafness of similar origin.
The last and only noisy employer is Gem Window.”
When asked at [8] for his opinion as to whether hearing aids are reasonably necessary as a result of the injury, Dr Raj says that:
“Mr Nguyen would benefit from hearing aids. Though his hearing loss is mild, he seems to have difficulty hearing his children, following television programs and using his telephone. The calculation shows that his industrial deafness is 0% WPI. Almost all of his hearing loss is due to a cause not due to industrial deafness. Considering only the threshold loss at 4000Hz, 40dB, this alone is sufficient to cause issues with hearing in some individuals even if other frequencies are normal. Based on this rather [sic, than] the WPI value, it is my opinion, that the hearing aids are reasonably necessary as a result of the injury.”
Dr Raj goes on to state in his report that:
(a) the pre-existing condition is the sensorineural losses in the lower frequencies between 500-3000 Hz;
(b) the applicant has reached maximal medical improvement; and that
(c) the applicant has not made any previous hearing loss claims.
Dr Raj further says that, in calculation of hearing loss:
“In the assessment of industrial deafness, the duration, character of exposure and the profile of the audiogram are considered. For calculation of hearing loss caused by industrial noise, normally, only frequencies of 2000-4000 are included and the lower frequencies excluded. Rarely depending on the length of exposure severity, character of noise, may frequencies below 2000Hz be included in the calculation of BHI and % WPI.
In this worker, there is noise exposure for an equivalent of 3 years. I assess the loss at 4000 Hz as due to industrial deafness.
As the injury is after 2002, the NAL 1988 tables are used.”
Dr Raj assesses total hearing loss at 15.6% BHI (bilateral hearing impairment) which equals 8% WPI (whole person impairment). He finds occupational hearing loss at 1.8% BHI, allows correction for presbycusis of 1.7, for tinnitus of 0.0, and arrives at an adjusted BHI of 0.1% which equals 0% WPI.
Dr Winkler’s opinion – reports dated 30 September 2020
There are two reports of Dr Winkler, a principal report, and a supplementary report of the same date, in which he answers nine specific questions put to him.
In his principal report which commences at page 18 of the Reply Dr Winkler notes in his recording of Mr Nguyen’s occupational noise history that he was then working for the respondent where he had been for two years. The description of the noise caused by that employment accords with Mr Nguyen’s description thereof in his statements, although
Dr Winkler records previous employment at Southern Star Windows for four years, a history not recorded by Dr Raj. Dr Winkler does not mention employment at Crown Windows Pty Ltd, which is referred to by Mr Nguyen in his statement dated 5 November 2018. This discrepancy in the histories of the applicant’s employment prior to Gem is not material. Both Dr Raj and Dr Winkler accept that Mr Nguyen’s employment was and is noisy, with
Dr Winkler stating that the history given by the applicant indicated that the noise to which he was exposed while working at Gem was capable of causing noise induced hearing loss. Both doctors record the applicant’s employment prior to Gem as noisy employment.
Dr Winkler’s examination under microscopy revealed a bilateral otitis externa with erythema of the right membrane and fungal mycelium against the left tympanic membrane, and that
Mr Nguyen was advised to seek treatment for the otitis externa. A record of the audiometry performed on 30 September 2020 by Dr Winkler was enclosed with his report which showed normal hearing at frequencies up to 4000 Hz in the right ear and 35dB dip at 6000 Hz. There was a greater hearing loss in the left ear.
In expressing his opinion Dr Winkler says that “The hearing loss at 6000Hz in the right ear is consistent with having been caused by a combination of occupational noise exposure and presbyacusis [sic, noting the differing ways of spelling this term]”, and that the greater loss in the left ear could not be attributed to work related causes because occupational noise exposure causes symmetric loss. He says that the loss in the left ear was probably due to the otitis externa. Dr Winkler went on to say that:
“Based on the history obtained from Mr Nguyen, the tendencies, incidents and characteristics of his employment with Paragon Manufacturing Group Pty Ltd trading as Gem Windows are such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.
Maximum medical improvement has been reached.
He does not suffer from severe tinnitus.”
Dr Winkler assessed total BHI at 3.0%, deducted presbyacusis (noting that Dr Raj refers to this condition as “presbycusis”) correction of 1.7%, added 0% loading for severe tinnitus for a total BHI of 1.3%. Occupational hearing impairment and WPI were assessed at 0%. Non occupational BHI was assessed at 3.0%. Dr Winkler says that:
“Hearing aids are not reasonably necessary due to the work injury. Hearing aids are considered necessary when the loss at 2000Hz exceeds 30dB. Mr Nguyen’s hearing loss at 2000Hz is 15 decibels in the right ear which is within normal limits.”
Dr Winkler noted no history of the applicant having made previous claims for industrial
deafness.
In his short supplementary report dated 30 September 2020 at page 16 of the Reply,
Dr Winkler says in answer to specific questions that:(a) Mr Nguyen had not sustained hearing loss consistent with the configuration of industrial deafness;
(b) he had no occupational noise induced hearing loss;
(c) his employment with the respondent was not a contributing factor to the current hearing loss;
(d) the respondent was Mr Nguyen’s last noisy employer;
(e) Mr Nguyen’s employment with the respondent was not to the nature of which the hearing loss was due;
(f) The respondent was Mr Nguyen’s last deemed noisy employer, and that
(g) Mr Nguyen would not benefit from the use of hearing aids.
When commenting on Dr Raj’s report, Dr Winkler says that:
“My audiogram shows hearing within normal limits in the right ear which is significantly better that the audiogram obtained by Dr Raj. The hearing loss in the left ear is due to fungal otitis externa which is an active infection and requires treatment.
Dr Raj has stated that Mr Nguyen would benefit from the use of hearing aids despite recording that he has Whole Person Impairment of 0. My audiogram shows that Mr Nguyen has hearing within normal limits at 2000Hz in the right ear and would not benefit from hearing aids. The hearing loss in the left ear is due to otitis externa and is not due to occupational cause.”
He also says that:
“Mr Nguyen had an active bilateral otitis externa at the time of consultation. There were fungal elements in the left meatus and significant erythema of the right tympanic membrane. He was advised to seek treatment for his ear infection.”
Dr Raj’s opinion - supplementary report dated 13 August 2021
Dr Raj summarised the findings of Dr Winkler and referred to the decision in Murphy v Allity Management Services Pty Ltd[5] (Murphy) to which his attention had been drawn by the applicant’s solicitor. Dr Raj answered questions put to him as follows:
(a) It is possible to assess the applicant’s total loss of hearing BHI irrespective of the cause. Any threshold over 15 dB has a BHI value, and the total hearing loss is the cumulative total of the BHI. The total calculated hearing loss at 500-4000 Hz as per Dr Winkler’s audiogram was 3.0% BHI before presbycusis. This was his (Dr Raj’s) calculation using Dr Winkler’s audiogram, the same result as Dr Winkler. Since Dr Winkler confirms that there is occupational noise at 6000Hz, the total hearing loss at 500-8000 Hz is 3.7%, and that he (Dr Raj) used the audiogram of Dr Winkler, as instructed, to calculate the total hearing loss.
(b) Based on the figure calculated above, coupled with the applicant’s subjective complaints caused by his hearing loss, he believed that hearing aids would benefit Mr Nguyen and that the provision of such aids was reasonably necessary because:
(i)the medical need for hearing aids does not depend on BHI or WPI;
(ii)Mr Nguyen did attend an audiologist to investigate his hearing difficulty, at which stage he was not aware of the cause of his hearing difficulty;
(iii)Mr Nguyen has difficulty hearing his children, has to turn up the television, has difficulty in interpreting words and has tinnitus, which indicated that he has difficulty hearing irrespective of the threshold value, BHI or WPI; and
(iv)his (Dr Raj’s) audiogram shows losses at 30dB at 4000Hz, which, as explained in his previous report, can cause disability in some people, as the applicant clearly illustrates.
[5] [2015] NSWWCCPD 49.
Dr Raj was then asked if in his opinion the occupational component of the applicant’s hearing loss materially contributed to the need for the provision of hearing aids. Dr Raj said that:
(a) he used his audiogram to answer this question as he could verify it and was confident of the results recorded;
(b) if Dr Winkler’s audiogram is used, the total hearing loss is 3.0% BHI, and after correction for presbycusis, the hearing loss is 1.3% BHI. As per the audiogram the BHI at 4000 Hz (20dB) = 0% BHI. In this situation, the occupational component does not materially contribute to the need for the provision of hearing aids;
(c) in his previous report he (Dr Raj) said that “Almost all of his hearing loss is due to a cause, not due to industrial deafness”. In his previous report he also stated that the need for hearing aids was not assessed based on BHI or WPI but on the loss of 40dB at 4000 (as per his audiogram). He said that both Dr Winkler’s report and his report establish that Mr Nguyen has a quantum of industrial deafness, not measurable in terms of WPI or BHI, and
(d) “It cannot be excluded that this unmeasurable quantum does not contribute to the hearing disability Mr Nguyen suffers… Occupational component could not be excluded as not contributing to the applicant’s hearing loss and, to an unmeasurable extent, materially contribute to the need described in 2.” (that “need” being for the provision of hearing aids).
Dr Raj concluded his report with the comment that the difference in audiogram is always an issue, and that it is impossible to determine which is a true recording of the patient’s threshold. He said that there was no evidence that the subject was not responding accurately and to the best of his ability during the consultation.
Submissions
The submissions of the parties were recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.
Applicant
The applicant submits that, on the issue as to whether the opinion of Dr Raj or Dr Winkler should be accepted, it is not entirely clear as to what Dr Winkler’s finding is. That is, has
Mr Nguyen suffered industrial deafness or not? This is not obvious from Dr Winkler’s report. There must be a finding as to whether the applicant suffered industrial deafness as a result of his employment, noting that a finding of actual causation in the employment of the respondent is not necessary. There must be a finding that the applicant suffered industrial deafness in employment to the nature of which the injury, that is loss, or further loss, of hearing was due.The applicant submits that irrespective of what Dr Winkler says, his employment with the respondent did satisfy that test.
The applicant refers to Dr Winkler’s reference to the greater loss in the left ear, and that it cannot be attributed to work related causes because occupational noise causes symmetrical loss. This submission is in the context of the doctor’s finding that Mr Nguyen has suffered a total hearing loss of 3%. The applicant submits that Dr Winkler has provided no real explanation as to why he has excluded the totality of the left ear hearing loss on the basis of different causes.
The applicant concedes that he has suffered hearing loss as a result of multiple causes, but submits that, in accordance with the opinion of Dr Raj, the loss at 4000 Hz is to be assessed. Other causes of hearing loss are presbycusis, that is reduction in hearing because of age, and other unknown cause(s). The applicant submits that it is not logical for Dr Winkler to have deducted the whole of the loss of hearing in the left ear because the loss of hearing in both ears is not symmetrical.
In respect of the assessment of Dr Raj, the applicant submits that he found a total loss of hearing of 13.6% BHI [sic, 15.6% BHI], of which there was an occupational component of 1.8% and a deduction of 1.7% for presbycusis. In short, the applicant does have some component of occupational hearing loss on a background of other hearing losses.
The applicant notes that when Dr Raj examined him, he found no problem with his ear canals. He described them as normal. This examination occurred in June 2020. Dr Winkler examined Mr Nguyen in September 2020, when he found infection in both the right and the left ear. An inference could be drawn that the infection arose on the period between the examinations, and that perhaps Dr Winkler’s assessment was complicated by the infection he found. That would undermine Dr Winkler’s opinion that the hearing loss in the left ear should be excluded from the assessment.
The applicant concedes that he is not relying on the finding by Dr Winkler of hearing loss at 6000 Hz in the right ear as having been caused by a combination of occupational noise exposure and presbycusis. This is commented upon by Dr Raj in his supplementary report dated 13 August 2021, but according to the applicant, is an incidental finding.
In respect of the second issue between the parties, that is if the hearing loss due to industrial deafness diagnosed by Dr Raj materially contributed to the need for the supply and fitting of the bilateral hearing aids, the applicant submits that there was such a material contribution. What must be the injury is the total loss of hearing, assessed by Dr Winkler at 3%BHI and by Dr Raj at 15.6% BHI.
The applicant submits that a finding of reasonable necessity for the supply and fitting of hearing aids is not dictated by the degree of WPI suffered by a worker as a result of occupation induced hearing impairment. A finding of 0% WPI does not mean that it is not reasonably necessary that such aids be supplied and fitted as a result of loss of hearing so caused.
The applicant submits that, in accordance with cases such as Rose v Health Commission (NSW) [6] (Rose), and Bartolo v Western Sydney Area Health Service[7](Bartolo), discussed in Diabv NRMA Ltd[8] (Diab), subjective matters such as the difficulty he experiences as a result of his loss of hearing should not be ignored. The cost of the hearing aids is not a factor, the supply of hearing aids is accepted treatment for hearing loss and will provide a better enjoyment of, and quality of life, and there is no alternative treatment available.
[6] [1986] NSWCC 2; NSWCCR 32.
[7] [1997] NSWCC 1; (1997) 14 NSWCCR 233.
[8] [2014] NSWWCCPD 72.
The applicant submits that Dr Winkler approaches the issue of the reasonable necessity for the provision of hearing aids solely from the analysis of occupational causes of hearing loss, whereas it is the question of what the injury is which is determinative of this issue. The injury is the loss of hearing, and in this regard the opinion of Dr Raj should be accepted.
Mr Nguyen submits that his position is analogous to that of the applicant in the recent decision of Member Glenn Capel in Winters v Endeavour Energy[9] (Winters), and that whether the need for reasonably necessary treatment arises from injury is a question of causation and must be determined based on the facts in each case, applying the common sense evaluation of the causal chain as discussed by Kirby J in Kooragang Cement Pty Ltd v Bates[10].
[9] [2021] NSWPIC 375.
[10] (1994) 35 NSWLR 452; 10 NSWCCR 796.
Respondent
The respondent submits that, based on the assessment of Dr Winkler, the applicant has not discharged the onus on him to show that the reasonable necessity for the provision of hearing aids results from injury suffered by him. The respondent rejects the applicant’s submission that Dr Winkler has made an error in his assessment, and submits that he has not excluded hearing loss on the left ear altogether from his assessment.
In submitting that Dr Winkler has not excluded the hearing loss in the left ear altogether, the respondent says that he has excluded only the greater loss in that ear due to otitis externa. Dr Winkler has not looked at the applicant’s hearing loss incorrectly. The result of his examination and assessment is that the applicant has suffered 0% WPI, although the respondent does acknowledge that such assessment is not of itself determinative of the reasonable necessity for hearing aids.
The respondent submits that when one looks at the reports of Dr Winkler and Dr Raj that there are real consistencies in the findings of the two doctors. Dr Winkler says that his audiogram shows normal hearing at frequencies up to 4000 Hz in the right ear and that he and Dr Raj differ in their assessments thereafter. Dr Raj did not test at 6000 Hz, and
Dr Winkler did, and the reason for this is that such testing is in accordance with the NAL (National Acoustic Laboratory) scale. Beyond that level difficulties are experienced with presbycusis.The respondent submits that Dr Raj accepts that the applicant has suffered a greater hearing loss in the left ear and that this is not due to industrial deafness. The respondent emphasises the comment of Dr Raj in his report dated 3 June 2020 that “The hearing loss is mild in all frequencies.” The difference between the assessments of Dr Raj and Dr Winkler is that
Dr Raj finds “a dip” at 4000 Hz due to noise exposure whereas Dr Winkler does not. The respondent submits that this dip is not significant.Having regard to the similarity in assessments by the two doctors, the respondent submits that, considering the duration of the period during which the applicant was exposed in a noisy employment, three years, and that any hearing loss below 4000 Hz is due to an unknown cause, hearing loss caused by “a dip” at 4000 Hz is speculation only. The view expressed by Dr Raj at [8] in his report dated 3 June 2020[11] as to the reasonable necessity for hearing aids in unpersuasive in view of the doctor’s comment that “Almost all of his hearing loss is due to a cause not due to industrial deafness.”
[11] ARD p 34.
The respondent submits that, using Dr Winkler’s assessment which is commented upon by Dr Raj in his supplementary report dated 13 August 2021, the total BHI of 1.3% is inconsequential, and that if Dr Winkler’s assessment is accepted, the applicant has failed in his application to show that the reasonable necessity for the supply of hearing aids results from an injury. In summary, the respondent submits that the views of Dr Winkler and Dr Raj are very close in most respects.
The respondent emphasises what was said in Murphy, that is based on a common sense evaluation of the evidence, there must be a finding that the injury suffered by the applicant materially contributed to the need for hearing aids. The onus is on the applicant to show this, and he has not discharged this onus.
The respondent draws attention to the comment of Dr Raj in his supplementary report that “It cannot be excluded that this unmeasurable quantum does not contribute to the hearing disability that Mr Nguyen suffers.” The reference to the “unmeasurable quantum” is to industrial deafness, and the respondent submits that this level of imprecision on the part of Dr Raj is “breathtaking”, and insufficient to assist the applicant in discharging the onus on him in the claim.
The respondent agrees with the applicant’s submission that the finding of hearing loss at 6000 Hz is an incidental finding and not relevant to the issue in the proceedings.
Applicant in response
The applicant contrasts the finding of Dr Winkler on 30 September 2020 of 3% BHI with that of Dr Raj of 15.6% BHI on 3 June 2020, noting the three-month gap between assessments and the finding of Dr Winkler of loss of hearing in the left ear cannot be attributed to work related causes because occupational noise causes symmetric loss. This difference in the assessments is perhaps due to the exclusion by Dr Winkler of hearing loss in the left ear. To succeed the applicant only needs to show that he has industrial deafness, and on the facts, a need for the supply and fitting of hearing aids.
FINDINGS AND REASONS
At [91] in Winters Member Capel quoted the following from at [88]-[89] in Diab, in which Deputy President Roche questioned the approach of what Burke CCJ said in Bartolo and cited with approval what his Honour said in Rose. Deputy President Roche provided a summary of the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”
The issue in this case is whether the work-related component of the applicant’s hearing loss materially contributes to the need for treatment, in the form of the supply and fitting of hearing aids (see Bluescope Steel (AIS) Pty Ltd v Sekulovski[12](Sekulovski)). In Sekulovski the applicant worker claimed the cost of hearing aids as a result of compensable hearing loss. He had previously made a number of small claims for hearing loss caused by exposure to noise at Bluescope Steel, the total of which was 8.38% binaural hearing loss. He submitted a further claim supported by an assessment of 7.1% binaural hearing loss. Bluescope Steel relied on a binding assessment contained in a Medical Assessment Certificate of 1.9% binaural hearing loss to argue that this did not justify the need for hearing aids. The Arbitrator at first instance and Deputy President Wood on appeal held that the evidence established that the work-related component of the worker’s hearing loss materially contributed to the need for treatment, in accordance with Murphy.
[12] [2019] NSWWCCPD 48.
Both the applicant and respondent acknowledge that:
(a) the fact that an assessment of BHI and WPI is 0% does not mean that the supply and fitting of hearing aids is not reasonably necessary treatment in accordance with s 60 of the 1987 Act, and
(b) the finding by Dr Winkler that the hearing loss at 6000 Hz in the right ear is consistent with having been caused by a combination of occupational noise exposure and presbycusis is an incidental finding and not relevant to the matter in issue in this case.
In this regard I note that the NSW workers compensation guidelines for the evaluation of permanent impairment, fourth edition, re-issued 1 March 2021 (the Guidelines) provide for the assessment of loss of hearing in Chapter 8. Impairment of a worker’s hearing is determined according to evaluation if the individual’s BHI (see [9.6] of the Guidelines).
Clause [9.9] of the Guidelines includes the following:
“ Evaluation of binaural hearing impairment is determined by using the tables in the 1988 NAL publication with allowance for presbyacusis according to the presbyacusis correction table, if applicable, in the same publication.
The binaural tables RB 500-4000 (NAL publication, pp 11–16) are to be used. The extension tables EB 4000- 8000 (NAL publication, pp 28–30) may be used when the worker has a ‘special requirement to be able to hear at frequencies above 4000 Hz’ (NAL publication, p 6). Where an assessor uses the extension tables, they must provide an explanation of the worker’s special requirement to be able to hear at frequencies above 4000 Hz. For the purposes of calculating binaural hearing impairment, the better and worse ear may vary as between frequencies.”
There is no evidence in this case that the applicant has a ‘special requirement to be able to hear at frequencies above 4000 Hz.’ In his report dated 3 June 2020 Dr Raj says that
Mr Nguyen’s audiogram is not consistent with industrial deafness, particularly the flat profile, that the hearing loss is mild in all frequencies and that the air-bone thresholds are similar. He notes the noise exposure for three years only and that the duration of such exposure is insufficient to cause any significant industrial deafness, “…and at most a dip at 4000 Hz”. Having regard to this duration of exposure and the high screeching noise to which
the applicant was subjected from the cutting machine, the doctor attributes the loss which he assessed at 4000 Hz (“…a dip at 4000Hz”) as due to industrial deafness. He says that the mild losses in the other frequencies are of unknown undetermined pathology.At the end of the report Dr Raj then records the subjective factors in respect of hearing loss experienced by Mr Nguyen (difficulty in hearing his children, following television programmes and using the telephone), acknowledges the 0% WPI and notes that almost all of
Mr Nguyen’s hearing loss is due to a cause not due to industrial deafness. He does however then say that the threshold at 4000 Hz, 40 dB, alone is sufficient to cause issues with hearing in some individuals even if other frequencies are normal. He bases the reasonable necessity for hearing aids on this threshold loss.In his supplementary report dated 13 August 2021, Dr Raj looks at the audiogram of
Dr Winkler in his report dated 30 September 2020, notes Dr Winkler’s opinion that a quantum of hearing loss at 6000 Hz is caused by industrial deafness and that his audiogram shows thresholds to be at 20 dB at 4000 Hz. Then in answer to question [1] put to him, Dr Raj notes that his calculation of total hearing loss at 500-4000 Hz is 3.0% BHI before presbycusis, the same as Dr Winkler’s. He then refers to Dr Winkler’s confirmation of occupational noise at 6000 Hz. According to Dr Raj, and using Dr Winkler’s audiogram, this then results in the total hearing loss at 500-8000 Hz as being 3.7% BHI.In answer to question [2] put to him Dr Winkler, says that his audiogram, which he later says he can verify and the result with which he is confident, shows losses “…at 30 dB at 4000 Hz”, which as he explained in his previous report, can cause disability in some people as is illustrated by Mr Nguyen. In his earlier report Dr Raj refers to a “…gentle slope from 30 dB at 500 Hz to 40 dB at 4000 Hz.”
In answer to question [3] put to him in the report dated 13 August 2021 Dr Raj then makes the comment, expressed in double negative terms and the subject of strong criticism by the respondent in submissions, that it cannot be excluded that the unmeasurable quantum of industrial deafness which appears both from the report of Dr Winkler and his own report, does not contribute to the hearing disability suffered by Mr Nguyen. Dr Raj says that this materially contributes to the reasonable necessity for the provision of hearing aids.
The industrial deafness assessed by Dr Winkler is that at 6000 Hz, which as noted above and conceded by both the applicant and respondent, is an incidental finding and not relevant to the issue in this case. In the absence of a special requirement of a worker to be able to hear at frequencies above 4000 Hz, frequencies above that level cannot be used to assess industrial deafness.
Dr Winkler says that the greater loss in the applicant’s left ear cannot be attributed to work related causes because occupational noise causes symmetric loss, and that the loss in that ear is probably due to the otitis externa which he diagnosed on examination. In fact, he found “…a bilateral otitis externa with erythema of the right membrane and fungal mycelium against the left tympanic membrane.” These conditions were not found by Dr Raj on his examination of Mr Nguyen three months earlier. Dr Winkler’s audiogram showed normal hearing at frequencies up to 4000 Hz in the right ear and a 35 dB dip at 6000Hz, and greater hearing loss in the left ear. This is obviously different from what Dr Raj’s audiogram revealed.
Dr Winkler also says that hearing aids are considered necessary when the loss at 2000 Hz exceeds 30 dB, and that Mr Nguyen’s hearing loss at 2000 Hz is 15 decibels in the right ear which is within normal limits. This is confirmed by an examination of the “Pure Tone Audiometry” report at the end of Dr Winkler’s report where “Right (dB HL)” at 2000 Hz is recorded as 15[13]. In the “Table 1: total hearing loss” in the report of Dr Raj dated 3 June 2020, hearing loss in the right ear is recorded as 35 dB at 2000 Hz, and at that level in the left ear[14]. Noted immediately above that Table, Dr Raj records noise exposure for an equivalent of three years and assesses the loss at 4000 Hz due to industrial deafness. In Table 1 it is recorded as 40 in the left ear and 35 in the right ear at 4000 Hz.
[13] Reply p 23.
[14] ARD p 35.
At the conclusion of Dr Raj’s report dated 13 August 2021 he acknowledges that the difference in the audiogram is always an issue, and it is impossible to determine which is a true recording of the patients’ threshold. He does however say that there was no evidence that Mr Nguyen was not responding accurately and to the best of his ability during the consultation.
Having regard to the evidence I have summarised above, and notwithstanding the criticism by the respondent levelled at Dr Raj for the way in which he expresses his opinion on the reasonable necessity for the provision of hearing aids as a result of injury in his report dated 13 August 2021, I find that the applicant has discharged the onus on him to succeed in his claim for the supply and fitting of hearing aids pursuant to s 60 of the 1987 Act.
I see no reason not to accept the audiogram carried out by Dr Raj on 2 June 2020, the results of which are recorded in his report dated 3 June 2020. He did not find the bilateral otitis externa and fungal condition in the applicant’s ears diagnosed by Dr Winkler three months later for which Mr Nguyen was advised to seek treatment. There is a divergence in the results of the audiograms carried out by the two doctors, and as Dr Raj acknowledges, the difference in audiograms is always an issue. In this case I accept the assessment of
Dr Raj based on the audiogram carried out by him.Dr Raj also acknowledges that the applicant does not suffer any significant (emphasis added) industrial deafness but finds that condition based on the dip in the audiogram he carried out at 4000 Hz. That is the injury on which the applicant must rely as providing the reasonable necessity for the provision of hearing aids. When that is considered along with:
(a) the acknowledgement that the applicant’s employment with the respondent was employment to the nature of which the injury, that is loss or further loss of hearing, was due;
(b) the type of screeching noise to which the applicant was exposed during the three years of his employment;
(c) Mr Nguyen’s description of the difficulties he has with hearing, and that
(d) notwithstanding the fact that Dr Raj has assessed the applicant as suffering 0.1% occupational BHI and 0% WPI, and Dr Winkler 0% occupational BHI and 0% WPI,
my view is that the applicant has provided sufficient evidence to discharge the onus of proof on him to show that the injury materially contributed to the reasonable necessity for the supply and fitting of hearing aids. There will accordingly be an award in favour of the applicant pursuant to s 60 of the 1987 Act.
SUMMARY
The applicant sustained injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 31 July 2020.
The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of
s 17(1)(a)(i) of the 1987 Act.The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury.
The respondent is liable for the cost of hearing aids.
The respondent is to pay for the cost of the supply and fitting of hearing aids on production of accounts and/or receipts pursuant to s 60 of the 1987 Act.
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