Nguyen v Programmed Skilled Workforce Ltd
[2025] NSWPIC 341
•16 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Nguyen v Programmed Skilled Workforce Ltd [2025] NSWPIC 341 |
| APPLICANT: | Huynh Huu Nguyen |
| RESPONDENT: | Programmed Skilled Workforce Ltd |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 16 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for hearing loss; claim for proposed future treatment expenses pursuant to section 60 being the supply and fitting of hearing aids; consideration of applicant’s statement, medical reports and other treatment records, and claim correspondence; consideration of whether the supply and fitting of hearing aids is reasonably necessary treatment for the applicant in relation to his accepted hearing loss injury; Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited, Nguyen v Cosmopolitan Homes, and Drca v KAB Seating Systems Pty Ltd considered; Held – the supply and fitting of hearing aids is not reasonably necessary treatment for the applicant in relation to his hearing loss injury; award for respondent entered. |
| DETERMINATIONS MADE: | 1. The supply and fitting of hearing aids is not reasonably necessary treatment for the applicant in relation to his hearing loss injury. 2. There is an award for the respondent pursuant to s 60 of the Workers Compensation Act 1987, in relation to the applicant’s claim for the costs associated with him being fitted with hearing aids. |
STATEMENT OF REASONS
BACKGROUND
Huynh Huu Nguyen (the applicant) is 57-years-old. He worked in noisy employment for around eight years, with BHP between 1992 and 1997, and with Programmed Skilled Workforce Ltd (the respondent) between 2008 and 22 September 2012.
He alleges occupationally acquired hearing loss as a result of that employment. He claimed compensation from the respondent pursuant to the Workers Compensation Act 1987 (the 1987 Act) in this regard, by way of a claim form dated 10 August 2023. Specifically, by way of a letter from his solicitors to the respondent dated 25 December 2023, he claimed (in accordance with s 60 of the 1987 Act) the costs associated with him being fitted with hearing aids.
The respondent denied liability for this claim by way of a notice dated 1 February 2024, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
As a result, an Application to Resolve a Dispute (ARD) was lodged by the applicant with the Personal Injury Commission (Commission) - requesting an award in his favour pursuant to s 60 of the 1987 Act in relation to the costs associated with him being fitted with hearing aids.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute in these proceedings is:
(a) is the supply and fitting of hearing aids reasonably necessary treatment for the applicant in relation to his hearing loss injury.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to these proceedings 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 proceedings 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 in the proceedings.
The proceedings were listed for a preliminary conference before the Commission on 28 May 2025. On that occasion, Mr Jon Trainor of counsel appeared for the applicant, instructed by Mr Ton. The applicant was present and assisted by a Vietnamese interpreter. The respondent was represented by Mr Lee, solicitor, and Mr Smutny.
The respondent conceded that the applicant suffered from occupationally acquired hearing loss, and that it was the last employer to employ him in employment to the nature of which the relevant hearing loss injury was due. It therefore accepted responsibility for the hearing loss injury in accordance with s 17 of the 1987 Act. However, it maintained its denial of liability regarding whether the supply and fitting of hearing aids was reasonably necessary treatment in relation to the injury.
Both parties therefore agreed as to the sole issue in dispute in these proceedings (see paragraph 5 above), which required determination by me.
Considering the limited nature of the determination required, as well as the fact that I was satisfied that sufficient information had been supplied to the Commission in the ARD and the respondent’s Reply (Reply), the parties were informed of my intention to determine the issue in dispute in the proceedings without holding a further conciliation conference or arbitration hearing. Neither party objected to this course.
I issued a timetable to allow written submissions to be provided to me, and those submissions were provided accordingly.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered by me in making this determination:
(a) the ARD and attached documents, and
(b) the Reply and attached documents.
Oral evidence
No oral evidence was provided by either party in the proceedings.
Applicant’s evidence
The applicant has provided a brief signed statement dated 23 April 2024 (found at page 1 of the ARD).
He says that since migrating to Australia from Vietnam in 1990, he has been exposed to noise for eight years of his employment history. Since he last worked for the respondent in 2011 (should read – 22 September 2012), he has operated his own business as a nail beautician with no exposure to noise.
He says that he has noticed hearing loss “for at least 10 years”. His wife complains to him about him not hearing her and about him requiring the television noise levels to be loud. He says that other people have also commented that he speaks loudly and they have to repeat themselves.
He refers to a consultation that he underwent with Dr Raj on 25 November 2021, and notes the doctor’s recommendation that he be fitted with hearing aids. He says – “I definitely will try to use the hearing aids not only to improve my hearing but also to prevent it from getting worse”. He asks the respondent’s insurer to fund the hearing aids for him as he believes that “I would benefit greatly from the use of hearing aids.”
Dr Raj’s 26 November 2021 report is found at page 25 of the ARD.
The doctor obtains a history from the applicant consistent with his statement evidence, particularly as referred to at paragraphs 15-16 above. He then performs an audiogram upon the applicant, and after considering the results of the audiogram, he opines:
“He only has eight years of noise exposure, and this duration is insufficient to cause significant industrial deafness, as shown by the normal levels up to 3000 Hz. He has a dip at 4000 Hz to 4000 Hz, which may be considered due to noise injury. This works out to be 2.7% BHI…The prognosis is good, and his hearing loss can be improved with hearing aids.”
Confusingly, the doctor proceeds to opine later:
“In assessing industrial deafness, the duration, character of exposure, and the audiogram profile are considered. To calculate hearing loss caused by industrial noise, frequencies of 2000-4000 Hz are typically included, and the lower frequencies are excluded. Rarely depending on the length of exposure, severity and character of noise, frequencies below 2000 Hz be included in the BHL and % WPI…I have explained the assessment. My opinion is that he has no [my emphasis] industrial deafness, but hearing loss is calculated to be 2.7% BHI, as shown below.”
The doctor further opines, specifically when questioned by the applicant’s solicitors regarding the applicant’s need for hearing aids:
“Mr Nguyen may not want to use hearing aids with such minimal loss of hearing. He may benefit from bilateral hearing aids, but I recommend a trial use of hearing aids first. The cost varies between $4000 and $6000…Much of his hearing loss is not due to industrial deafness. If we consider the dip at 4000 Hz to 40 dB, this could cause disability in some individuals. The benefit of the doubt is to the worker. Thus it is reasonable to say the hearing aids are reasonably necessary due to the injury.”
The doctor finds overall that the applicant has 5.7% binaural hearing loss, but only 2.7% binaural hearing loss due to occupational noise exposure, the remaining binaural hearing loss being at lower frequencies not considered by him to be affected by occupational noise exposure.
The applicant also relies upon a report and quotation from an audiometrist (Saiful Quddus) from Acoustic Hearing Care dated 30 June 2023 (found at page 32 of the ARD).
The report records the applicant’s difficulties:
“He reported that he has had hearing difficulties in different listening situation/s. He has particularly more difficulty understanding people on 1-on-1 conversation in background noise. He use to listen TV with louder volume. He has had problem understanding people on phone conversation as well.”
The audiometrist opines that the applicant’s hearing loss is consistent as being “related to the possible noise induced/industrial deafness.” The audiometrist recommends a particular model of hearing aids (Resound Omnia 761: RU761-DRW) for the applicant, and provides a quotation for their supply and fitting (an amount of $5,888.70). It is advised that the “model is suitable for helping Mr Nguyen to overcome his compromised auditory communication at different listening situation/s discussed.”
Finally, the applicant relies upon audiogram results from testing by Vinh Hung Cao on 7 May 2021 (found at page 31 of the ARD). This testing revealed 15.5% binaural hearing loss, but only 6.1% binaural hearing loss if frequencies at and below 3,000 Hz are not considered.
Respondent’s evidence
The respondent relies upon a report obtained from Dr Payten dated 20 May 2025, which is found at page 1 of the Reply.
The doctor obtains a non-controversial history of the applicant’s noisy employment with BHP and the respondent for eight years in total. The doctor also obtains a history that the applicant first noticed hearing loss about 10 years ago, and that it has become progressively worse. He has occasional tinnitus but it does not interfere with his sleep or activities of daily living. He needs to turn his television up louder than is comfortable for his wife, and he finds it difficult to hear people in noisy places.
The doctor performs an audiogram upon the applicant and finds a total of 4.5% binaural hearing loss (including the losses at both the 3,000 Hz and 4,000 Hz frequencies in this assessment).
The doctor is then asked by the respondent’s solicitors to comment upon Dr Raj’s opinions, and the doctor points out the inconsistency in Dr Raj’s report (see paragraphs 19-20 above) as to whether the applicant in fact suffers from industrial deafness. The doctor however refers to the audiogram that he conducted and concludes that the applicant has 4.5% occupational hearing loss (with a subsequent 0.2% deduction for presbycusis). He comments in relation to Dr Raj’s audiogram:
“The hearing losses demonstrated on Table 1 by Dr Raj show no hearing loss for any of the frequencies other than 4.0 KHz. The audiogram which he performed shows bone conduction thresholds recorded for each frequency. Conduction thresholds are only recorded for the frequencies of 500, 1000, 3000 and 4000…Conduction thresholds are not as accurate as air conduction thresholds and it would appear that Dr Raj is referring to these low conduction thresholds when he comments that much of the hearing loss is not due to industrial deafness and that the sensorineural losses in the lower frequencies are due to a pre-existing condition. I do not agree with this as the audiogram obtained by me today showed normal hearing for the low frequencies and only abnormal hearing for the high frequencies of 3.0 and 4.0 KHz.”
The doctor finally opines that hearing aids are not reasonably necessary medical treatment for the applicant having regard to the degree of his hearing loss. He comments:
“In my opinion hearing aids are not reasonably necessary medical treatment as the 4.3% adjusted total binaural occupational hearing loss is not sufficient for hm [sic] to benefit with the wearing of aids. As a guide to what percentage of hearing loss is necessary to benefit with wearing of hearing aids I refer to the minimum hearing loss threshold for the provision of hearing aids as regulated under the Hearing Services’ determination of 1997. These apply to the provision of hearing aids free of charge to pensioners by the Australian Government Hearing Service Program…As of July 2010 clients 3-frequency average hearing loss measured at 0.5, 1.0 and 2.0 KHz is [sic] less than or equal to 23 dB do not qualify for the fitting of hearing aids. Mt [sic] Nguyen’s average for these three frequencies is 15 dB…An exemption applies where the higher frequency average hearing loss for 2.0, 3.0 and 4.0 KHz is equal to or greater than 40 dB. Mr Nguyen’s average is 2.3 dB.”
Applicant’s written submissions
These submissions dated 30 May 2025 form part of the Commission’s record, and I will not therefore outline them in detail. I have considered them in their entirety.
The applicant stresses that it is unchallenged that his wife complains about his hearing loss (see paragraph 16 above), that he has difficulty hearing people in noisy environments (see paragraph 28 above), and that he has difficulty understanding people when speaking on the telephone (see paragraph 24 above). His hearing loss causes some disruption to his life, which will continue indefinitely if not treated.
The applicant also submits that the opinion of his audiometrist (Saiful Quddus) is also unchallenged by the respondent.
The applicant refers to Dr Raj’s opinions as being expressed in an “ad hoc manner”, but as still supporting his need for hearing aids. In comparing the opinions of Drs Raj and Payten, the applicant warns:
“Further, while it can be fairly said that as a matter of form, Dr Payten’s opinion is expressed more succinctly than that of Dr Raj, the Member’s task is assess the efficacy of those competing opinions, and not the felicity by which they are expressed. In this regard, the Member would have concerns regarding Dr Payten’s reasoning process by which he concludes that hearing aids are not reasonably necessary.”
The applicant specifically refers to:
(a) Dr Payten linking the need for hearing aids to the extent of impairment associated with industrial deafness – “the doctor correlates a liability under section 60 for hearing aids to a liability (or indeed the lack [of a] liability) under section 66”;
(b) Dr Payten not considering the applicant’s hearing loss as a whole in the context of whether hearing aids are reasonably necessary – if they are reasonably necessary in relation to the applicant’s hearing loss as a whole, they will be compensable so long as the degree of the applicant’s industrial deafness still materially contributes to the necessity in this regard;
(c) Dr Payten’s opinion (see paragraph 31 above) is a bare ipse dixit opinion – the doctor does not deal with the accepted criteria to be considered when providing such an opinion, being treatment appropriateness, treatment alternatives, treatment cost, treatment effectiveness, and acceptance of the treatment by the medical profession, and
(d) Dr Payten’s reliance on “the Hearing Services’ determination of 1997” and the “Australian Government Hearing Service Program” is misguided as:
(i)it seeks to create a “false equivalency” between entitlements pursuant to that determination or that program, and entitlements pursuant to s 60 of the 1987 Act, and
(ii)it ignores the accepted criteria to be considered (see paragraph 36(c) above) in determining entitlements pursuant to s 60 of the 1987 Act.
The applicant finally addresses the accepted criteria to be considered (see paragraph 36(c) above) in determining entitlements pursuant to s 60 of the 1987 Act:
(a) appropriateness – hearing aids will alleviate the effects of the applicant’s hearing loss and enable better communication;
(b) alternatives – there is no evidence as to any alternative treatment to alleviate the effects of the applicant’s hearing loss;
(c) cost – not excessive;
(d) effectiveness – hearing aids will overcome the applicant’s communication difficulties, and
(e) acceptance – generally accepted.
Respondent’s written submissions
These submissions dated 26 June 2025 form part of the Commission’s record, and I will not therefore outline them in detail. I have considered them in their entirety.
The respondent describes the applicant’s hearing loss as “what could only be described as an extremely modest binaural hearing loss of 2.7% (as per Dr Raj) or 4.3% binaural hearing loss (as per Dr Payten)”. It submits “the provision of hearing aids in such a modest hearing loss will be of no benefit.”
It submits that Dr Raj is inconsistent in determining a low level of binaural hearing loss and yet finding that the provision of hearing aids to the applicant (with such a minimal hearing loss) would benefit him. It submits that Dr Payten is clear in his opinion that the applicant has an insufficient level of hearing loss to benefit from hearing aids, and that this opinion should be accepted.
The respondent refers me to authorities such as Bartolo v Western Sydney Area Health Service (1997) 15 NSWCCR 233 (Bartolo), Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), and Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2 (Cairney). The respondent also notes the criteria (referred to by the applicant at paragraphs 36(c) and 37 above) which are outlined in Rose and Diab as being relevant when determining whether treatment is reasonably necessary in accordance with s 60 of the 1987 Act.
Applicant’s written submissions in reply
These submissions dated 3 July 2025 form part of the Commission’s record, and I will not therefore outline them in detail. I have considered them in their entirety.
The applicant addresses the respondent’s written submissions:
(a) the submissions have failed to address the criticism of Dr Payten’s report raised by the applicant at paragraph 36(b) above – the applicant refers to Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy);
(b) the submissions have failed to deal with the fact that Dr Payten’s reliance on “the Hearing Services’ determination of 1997” and the “Australian Government Hearing Service Program” is an “intrinsic” part of his opinion;
(c) the submissions are silent in challenging the opinion of the applicant’s audiometrist (Saiful Quddus), and
(d) the submissions are silent in specifically addressing (as the applicant did in his submissions – see paragraph 37 above) the application to these proceedings of the criteria outlined in Rose and Diab.
FINDINGS AND REASONS
Is the supply and fitting of hearing aids reasonably necessary treatment for the applicant in relation to his hearing loss injury
Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1) domestic assistance services,
(g) the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment.”
There is no dispute that hearing aids, if reasonably necessary for the applicant, are claimable in accordance with ss 59 and 60 of the 1987 Act. There is also no dispute that the applicant has sustained a degree of occupational hearing loss.
I accept the applicant’s submission (see paragraphs 36(b) and 43(a) above) that as long as the occupationally acquired part of the applicant’s hearing loss materially contributes to a reasonable need for hearing aids, the hearing aids would be compensable.
In this regard, in Murphy, Roche DP stated (at [58]):
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
Dr Raj assesses the applicant’s total hearing loss at 5.7%, and it appears (subject to the confusion in the doctor’s report discussed at paragraph 61 below) that the doctor assesses his occupationally acquired hearing loss at 2.7%. In my opinion, this is sufficient for the occupationally acquired hearing loss to be a material contributor to the total hearing loss.
Dr Payten assesses the applicant’s total hearing loss at 4.5%, which he finds to be all occupationally acquired (although he then deducts 0.2% hearing loss for presbycusis).
The applicant’s audiometrist (Saiful Quddus) does not advise as to the level of the applicant’s hearing loss.
There is also (see paragraph 26 above) in evidence audiogram test results from 7 May 2021 suggesting the applicant’s total hearing loss to be 15.5%. I do not however place weight upon these results, as there is no report in evidence accompanying the one page of results, and as the results are in any case significantly inconsistent with the audiogram test results obtained by both Drs Raj and Payten.
In those circumstances, I find the applicant’s total hearing loss to be between 4.5% and 5.7%. I also find the occupationally acquired part of the hearing loss to be a material contributor to the total hearing loss.
The issue for determination by me is therefore whether the applicant’s total hearing loss of between 4.5% to 5.7% (and the symptoms which accompany it) is such that the supply and fitting of hearing aids is reasonably necessary treatment in this regard.
The standard test adopted in determining if medical treatment is reasonably necessary is that stated by Burke CCJ in Rose, where his Honour said:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab, Roche DP considered Rose and concluded (at [86-89]):
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
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 at point (5) 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.”
Roche DP then confirmed his reasoning in Diab, in Cairney.
The applicant spends a great deal of his written submissions criticising the report of Dr Payten, without in my opinion sufficiently addressing the deficiencies in the evidence that he has presented to me. He of course bears the onus of proof in these proceedings, and for him to be successful in the proceedings, I need to feel actual persuasion (in accordance with Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen)), that the supply and fitting of hearing aids is reasonably necessary treatment for his total hearing loss of between 4.5% and 5.7% (together with the symptoms which accompany that loss).
Roche DP discussed Nguyen in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca) (at [104]-[105]):
“A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).”
In relation to the evidence presented to me by the applicant, I find Dr Raj’s report to be problematic. It is not just that (as conceded by the applicant – see paragraph 35 above) the report is expressed in an ad hoc manner and not as succinctly as Dr Payten’s report – I find the report confusing.
The report emphasises that the applicant does not have “significant industrial deafness” but has hearing loss at the 4,000 Hz frequency which may [my emphasis] be occupationally acquired - see the extract quoted at paragraph 19 above. The report however then (see the extract quoted at paragraph 20 above) provides an opinion that the applicant “has no industrial deafness”. Neither the doctor nor the applicant in his submissions addresses or explains this inconsistency, although the doctor later (see paragraph 22 above) divides the applicant’s total binaural hearing loss of 5.7% as to 2.7% due to occupational noise exposure and 3.0% due to other factors.
Dr Raj’s specific opinion (see the extract quoted at paragraph 21 above) regarding the applicant’s need for hearing aids is also confusing. He says that the applicant may [my emphasis] benefit from hearing aids but that he may not want to use them considering his “minimal loss of hearing”. This is not a strong opinion, and does not in my opinion suggest any form of necessity. The doctor goes on to say that hearing aids are reasonably necessary for the applicant because “the benefit of the doubt is to the worker”. I do not understand this conclusion. It is not explained in any more detail.
The applicant asks me (see paragraph 33 above) to accept the symptoms that arise from his hearing loss, which are outlined by him in his statement evidence and in the histories which he has provided to Drs Raj and Payten. I do accept that evidence, but whether hearing aids are reasonably necessary to address those symptoms is a matter for expert evidence, in relation to which, I find the evidence of Dr Raj unreliable for the reasons outlined above.
The applicant also asks me (see paragraph 34 above) to accept the unchallenged evidence of his audiometrist. That evidence (see paragraphs 24-25 above) essentially outlines a number of symptoms of the applicant’s, and then recommends particular hearing aids as suitable for him to “overcome his compromised auditory communication at different listening situation/s discussed”.
I accept that an audiometrist has a form of expertise to allow my consideration of evidence presented by him/her. However I do not intend to afford any significant weight to the opinion of the applicant’s audiometrist as:
(a) the opinion in my view lacks explanation as to how the relevant hearing aids will overcome the applicant’s symptoms;
(b) the opinion does not refer at all to the extent of the applicant’s hearing loss;
(c) I disagree with the applicant’s submission that the opinion is unchallenged – it is certainly challenged by Dr Payten’s opinion that hearing aids are not reasonably necessary for the applicant’s level of hearing loss – and Dr Payten is a qualified ear, nose, and throat specialist with many years’ expertise, and
(d) the opinion only refers to the applicant’s hearing loss as being consistent with possible [my emphasis] industrial deafness.
I have already rejected the only other evidence presented by the applicant – see paragraph 52 above.
While I accept some of the criticisms levelled towards Dr Payten’s report by the applicant, I nevertheless find his opinion regarding hearing aids not being reasonably necessary for the applicant to be more reliable than Dr Raj’s, and certainly more reliable than the applicant’s audiometrist.
While the doctor’s reliance on “the Hearing Services’ determination of 1997” and the “Australian Government Hearing Service Program” is in my opinion problematic, I still believe that it is clear from his report (see the extract quoted at paragraph 31 above) that his reason for regarding hearing aids as not being reasonably necessary for the applicant is that the hearing loss found by him is not sufficient for hearing aids to benefit the symptoms caused by that loss. While the doctor could have provided more explanation for this opinion, I do not consider it to be a bare ipse dixit opinion (as submitted by the applicant – see paragraph 36(c) above). Certainly, I find the explanation for Dr Payten’s opinion to be clearer than the explanation for Dr Raj’s opinion (see paragraph 62 above).
While Dr Payten does not provide his opinion specifically by reference to the criteria outlined in Rose and Diab, nor in my view does Dr Raj or the applicant’s audiometrist.
Further, I reject the applicant’s submission at paragraph 36(a) above. I do not consider Dr Payten to have linked a liability under s 60 of the 1987 Act to a liability under s 66 of the 1987 Act. Instead, I consider the doctor to have linked the respondent’s lack of liability under s 60 of the 1987 Act to the insufficient level of the applicant’s binaural hearing loss (as assessed by the doctor) to make the need for hearing aids to be reasonably necessary.
In specifically considering the criteria referred to in Rose and Diab, I find:
(a) I am not satisfied that I have been presented with sufficient evidence to actually persuade me that the provision of hearing aids is appropriate treatment for the applicant’s hearing loss – I accept Dr Payten’s opinion that the applicant’s hearing loss as assessed by him, is not sufficient for the applicant to benefit from the wearing of hearing aids;
(b) while there is no evidence before me as to any alternative treatment available in relation to the applicant’s hearing loss, this lack of evidence is not sufficient by itself for me to find the provision of hearing aids to be reasonably necessary treatment for the applicant - indeed, even the opinion of Dr Raj seems to be that the provision of hearing aids is an optional decision for the applicant as he may not want to wear them;
(c) while the costs involved in fitting the applicant with hearing aids is not great, this fact alone does not make the provision of hearing aids to be reasonably necessary when I have found them to be not appropriate treatment for the level of the applicant’s hearing loss;
(d) there is competing evidence as to the effectiveness of the provision of hearing aids to the applicant – I am not satisfied however that the applicant has presented me with sufficient and cogent evidence in this regard for me to be actually persuaded as to the relevant effectiveness – I find the opinion from Dr Payten regarding the probable ineffectiveness of the provision of hearing aids to the applicant due to his minimal hearing loss to be more compelling, and
(e) considering that I have not been actually persuaded by the evidence submitted to me by the applicant, and considering that I find the evidence of Dr Payten to be more reliable, I do not find that in the case of the applicant, the provision of hearing aids has acceptance by medical experts as being appropriate and likely to be effective.
In accordance with Rose, I do not find on the evidence before me that the provision of hearing aids to the applicant “is essential to, should be afforded to, and should not be forborne by” him. The evidence presented by the applicant does not allow me to feel the actual persuasion needed in this regard, in accordance with Nguyen and Drca.
SUMMARY
I find that the supply and fitting of hearing aids is not reasonably necessary treatment for the applicant in relation to his hearing loss injury.
There will as a result be an award for the respondent pursuant to s 60 of the 1987 Act, in relation to the applicant’s claim for the costs associated with him being fitted with hearing aids.
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