Nield and Military Rehabilitation and Compensation Commission

[2006] AATA 702

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 702

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/14

VETERANS' APPEALS DIVISION		)
Re		GRAHAM JOHN NIELD

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)

Date16 August 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

COMPENSATION – bilateral noise induced hearing loss and tinnitus – onset of hearing loss and tinnitus in 1974/75 – gradual worsening of hearing loss over time – pro-rata calculation of hearing loss between two separate periods of time – transitional provisions of Safety, Rehabilitation and Compensation Act 1988 considered – decision affirmed

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation and Compensation Act 1988 ss 4, 24, 27, 28, 124(3)

Blackman v Australian Telecommunication Corporation (1990) 12 AAR 11
Telstra Corporation Limited v Giovanni Angelica, Federal Court, 14 July 1994, 491/1994
Comcare v Maida (2002) 36 AAR 69

REASONS FOR DECISION

16 August 2006   Senior Member L Hastwell
  Dr E T Eriksen (Member)           

1.      Graham John Nield (the applicant) served in the Australian Army Reserves from 1 October 1963 until his discharge on 11 August 1999. 

2.      In June 1974 after significant exposure to gunfire during an Army Reserves training camp, he developed ringing in his ears.  The incident was reported and medically investigated at the time, but he did not lodge a claim for compensation.

3.      In 1988 the new Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) came into effect, replacing the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). 

4.      In June 1999, shortly before his discharge, the applicant lodged a claim for compensation for “loss of hearing and ringing in the ears”.  Liability was accepted with respect to “bilateral noise induced hearing loss and tinnitus” with a deemed date of injury of 24 June 1975.

5.      The applicant then sought an assessment of his permanent impairment entitlement.  After lengthy communications between the applicant and the respondent and after further medical assessments had been carried out, a determination was made on 8 January 2004 that he had suffered a 6 percent loss of hearing under the 1971 Act.  After a request for review, a reviewable determination was made on 21 May 2004 (T62) which varied the determination of 8 January 2004 and determined that he was entitled to lump sum compensation for a 9.7 percent hearing loss under the 1971 Act.  There was a finding that a further 4.3 percent of his hearing loss occurred after 1 December 1988, and was therefore not compensable by a lump sum under the 1988 Act as it did not give rise to a sufficient level of permanent impairment to be compensable.  It was also determined that he had no entitlement to any separate lump sum payment for the condition tinnitus, on the basis that that condition arose under the 1971 Act, and was not compensable under that legislation.

6.      The applicant has sought a review of that decision.

legislation

7.      Section 24 of the 1988 Act provides:

“24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)      the duration of the impairment;

(b)      the likelihood of improvement in the employee’s condition;

(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)      any other relevant matters.

(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)      The degree of permanent impairment shall be expressed as a percentage.

(7)      Subject to section 25, if:

(a)the employee has a permanent impairment other than a hearing loss; and

(b)Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

(7A)     Subject to section 25, if:

(a)      the employee has a permanent impairment that is a hearing loss; and

(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

an amount of compensation is not payable to the employee under this section.

(8)      Subsection (7) does not apply to any one or more of the following:

(a)the impairment constituted by the loss, or the loss of the use, of a finger;

(b)      the impairment constituted by the loss, or the loss of the use, of a toe;

(c)      the impairment constituted by the loss of the sense of taste;

(d)      the impairment constituted by the loss of the sense of smell.

(9)      For the purposes of this section, the maximum amount is $80,000.”

Section 27 of the 1988 Act provides:

“27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2)The amount of compensation is an amount assessed by Comcare under the formula:

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

(3)This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

Section 124(3) of the 1988 Act provides:

“(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;

(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or

(iii)in any other case—under the 1971 Act as in force when the impairment or death occurred.”

Section 4 of the 1988 Act provides the following definitions:

“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

…

permanent means likely to continue indefinitely.”

Section 28 of the 1988 Act provides that the Commonwealth can approve a Guide to the Assessment of the Degree of Permanent Impairment (the Guide) that sets out the method by which the percentage of permanent impairment is calculated.  This Guide is revised from time to time.  Table 7.1 of the Guide relates to the assessment of hearing.

issues

8.      The issues for the Tribunal to determine in this case are:

·Are the applicant’s impairment or impairments compensable under the 1971 Act, the 1988 Act or both?

·Was his condition of tinnitus permanent before 1 December 1988?

·Was his condition of hearing loss permanent before 1 December 1988?

·Is it appropriate to allocate his hearing loss across two periods of time such that one portion is to be considered by reference to the 1971 Act and one portion by reference to the 1988 Act?

background

9.      There was a great deal of common ground between the parties, and the Tribunal sets out those facts that are not in dispute and which are relevant to the Tribunal’s determination:

·The applicant was an employee for the purposes of the legislation.  He served in the Army Reserves from 1 October 1963 until his discharge on 11 August 1999.

·In June 1974 the applicant was exposed to gunfire during an Army Reserves training camp, and developed ringing in his ears.

·The applicant first reported hearing difficulties in 1975 and he was referred to an ear, nose and throat specialist by the Army in September 1975.  Audiograms were carried out in September 1975 and thereafter from time to time during his service.  This testing provided an indicator of his hearing loss at given points in time during his Army service.

·The applicant suffers from hearing loss and tinnitus, both of which are accepted conditions.

the hearing

10.     The applicant represented himself.  He tendered exhibits to the Tribunal which where relevant will be referred to.  After the hearing he sent a subsequent written submission to the Tribunal which the Tribunal had regard to in making its decision.  He did not call any independent witnesses.

11.     The respondent was represented by counsel.  The respondent also tendered some exhibits.  The T documents were received into evidence as was a brief of medical evidence relating to the applicant (Exhibit R4).  Mr Robert Webb, an otolaryngologist, gave medical evidence on the respondent’s behalf by telephone.

12.     The applicant described being exposed to gunfire or small arms fire for various periods during his service with the Army Reserves.  He said it was “not particularly worrying”, although he acknowledged that he did report it on two occasions in the 1970s that would be on his file.  He said that from the end of the 1980s, but more particularly from the early 1990s, the tinnitus became more noticeable in pitch and level of intensity and it became a 24 hour a day problem which was apparent to his family as well.  As a primary school teacher, it became noticeable to him that he was having difficulty understanding students who were talking to him unless he was right next to them.

13.     Prior to his discharge from the Army Reserves in 1999, he submitted a claim with respect to his hearing difficulties.  He described the next 6 years as being “a long history of frustration”.  He complained about the method upon which his assessment of impairment has been calculated, and he complained that the respondent continued to deem his tinnitus as having arisen under the 1971 Act and therefore not capable of being compensated. 

14.     The applicant said that the tinnitus was one of the most troubling aspects of his hearing problem and that he began to notice significant problems with his hearing during the currency of the 1988 Act. 

15.     In 1974 he noticed ringing in his ears after being exposed to a blast from a gun.  In his evidence before the Tribunal, he described the ringing in his ears as a minor thing that went away.  It then repeated itself at a training camp at Hampstead about 8-10 months later and he recalled that on that occasion the ringing may have lasted for 2, 3, 4 or 5 days after that particular event.  He reported the problem to a doctor who was on the course with him.  He was sent to see a Mr Barnett, an ear, nose and throat specialist, who carried out an audiogram on his account and told him to try to keep away from loud noise. 

16.     He described his hearing condition as worsening over time, but he said that he did not specifically notice any hearing loss.  Thereafter, when he went on to the gun position he used hearing protectors which were fairly basic.  Nevertheless, at times he was caught with no pre-warning of gunfire, particularly when he was the roving sentry responsible for the perimeter clearance of the range area and he would have no ear protection.  Ear protectors were at that stage only issued on the gun line.  His exposure to gunfire reduced from the early 1980s onwards.

17.     After 1975 he estimated that at least every two years he would be caught in a situation which would cause some ear ringing for 1 or 2 or even 5 or 7 days afterwards.  He said his tinnitus would come and go.  He said:

“It would come and it would go.  It would come after exposure and it would tend to go away again, and as I said, looking at my memory, the cumulative effect of that started to be noticeable I would think, around the late 1980s, but by 93, 94, I was very aware of it as a full-time problem. … the tinnitus … and of course members of my family, etc started to say: you are deaf.”

18.     The applicant was asked to consider his original claim for compensation in June 1999 (T5/19-22).  In particular pages 21-22 of the attachment to his claim where he gave an account of when his hearing injury occurred.  He stated that the ringing commenced after an incident in 1975 and “From that time on I have had a permanent ring in my ears when it is quiet.  Of late it seems to have got worse and I am noticing that I am unable to hear unless I am looking at the person and there is not a lot of background noise”.  Further on in that document he outlined the event leading to the injuries being “As outlined there was no definitive cause but it was certainly exasperated by the event in 1975”.  He signed that document at the time.

19.     When confronted with the inconsistency between his statement in this document and the evidence that he had given to the Tribunal, the applicant said that he could not recall making that statement.  It was put to him that the annexure to his claim gave the proper and truthful account of when the ringing in his ears commenced.  His response was “I don’t remember it that way”.

20.     He described being in the transport section of the artillery for the first 15-20 years of his time in the Army Reserves and thereafter he became more involved with roving sentry duty as distinct from transport.  He remained in the artillery branch.  His service was characterised by attendance on a Tuesday night for around 45-48 weeks of the year, when he was not exposed to artillery fire.  He would then have between 5 and 8 weekends a year which would be field firing weekends when he had exposure to gunfire.  There was also an annual training camp when he would go away with the Army for a continuous block of 14 days.  He would be exposed to gunfire during those camps.

21.     The applicant was referred to a letter at T11/38 which had been written by him to the Military Compensation and Rehabilitation Service in support of his claim in January 2000.  This contradicted the evidence that he gave to the Tribunal about his exposure to gunfire after 1975.  In that document he stated that he had been very careful about noise exposure after 1975.  His response in evidence was that the letter was not a truthful account of circumstances at the time.  He explained the statement in that letter by saying that he took advice from another person who told him to make sure he did not admit that there was any possibility that he could have been liable for not having the protection and that he was told to “steer his argument in that way”. 

22.     When counsel pressed him about the fact that he appeared prepared to lie to support a claim for compensation, he responded “I would say that I was prepared to fudge the situation to get reasonable compensation … which I believed I was able to receive”.

23.     He was not told the outcome of medical examinations that he undertook for fitness for duty by the Army Reserves and he had not seen a copy of Mr Barnett’s report prior to his Army medical records being produced for the purposes of the hearing.  He also could not recall telling Mr Webb that the tinnitus had been ongoing since the 1970s.

24.     The applicant acknowledged that after 1983 he had less exposure to explosions.  He had not followed up Mr Webb’s suggestion in 2003 that he investigate why he was suffering an ongoing hearing loss, even though he was no longer exposed to loud noises.

medical evidence

25.     Mr Webb, an otolaryngologist, gave evidence by telephone for the respondent.  His report of 1 December 2003 was at T48.  As to the history given to him by the applicant, he understood that the applicant had suffered from continuous tinnitus since the mid 1970s when he was exposed unexpectedly to an artillery blast.  He sustained a slight deterioration of his hearing at the time, with then some improvement, followed by subsequent deterioration. 

26.     Mr Webb was left with the impression that the applicant suffered from tinnitus from the 1970s, and that it had continued unchanged. 

27.     Mr Webb confirmed the contents of his report at T48 and findings, which were that the audiogram performed shortly after the applicant left the Army Reserves in 1999 was indicative of his service related hearing loss and showed an 8.6 percent hearing loss.  He considered that at the time the applicant had a 5 percent whole person impairment for continuous tinnitus.  He thought that the applicant’s continued deterioration in hearing, which was now 14 percent, was unrelated to his service.  He had suggested that the applicant seek advice as to what could be the cause of the ongoing deterioration in his hearing. 

28.     Mr Webb endorsed the pro-rata approach taken by the respondent in allocating the hearing loss between two different periods of time.  In his view, this was an appropriate way to deal with the hearing loss.  He said that hearing loss due to loud noise exposure ceases when that noise ceases.  He referred to the “highest level of acceptable scientific evidence” as being available to support the contention that hearing loss ceases when exposure to loud noise ceases. 

29.     Based on audiograms that had been carried out on the applicant, Mr Webb said that when tested in 1975 the applicant showed a minimal hearing loss in his left ear and a mild hearing loss in the right ear.  When tested in October 1999 upon discharge from the Army Reserves, he had an 8.6 percent hearing loss. 

other medical evidence

30.     A brief of medical evidence that had been provided to Mr Webb was received at Exhibit R4.  It included a summary of audiograms carried out on the applicant between September 1975 and November 2003.  The applicant’s service medical records were included, as were medical reports of Mr Hains, Professor Black, Mr Webb and Dr Baker.  The Tribunal had regard to that brief of evidence. 

31.     The Tribunal notes that in the applicant’s service medical records it is reported that on 24 June 1975 the applicant reported suffering perpetual ringing in his ears since an artillery camp in 1974 when he was exposed to almost constant gunfire.  A diagnosis of bilateral tinnitus and sensorineural hearing loss secondary to acoustic trauma was made at the time.  A dip in hearing was noted and he was advised against ongoing loud noise exposure.

32.     Professor Black in two separate reports expressed the view that noise trauma occurs at the time of exposure to the noise and “the damage (ie hearing loss) ceases and further deterioration does not occur unless the individual is exposed to further severe prolonged noise or blast effects”.

33.     Audiograms done periodically throughout the applicant’s Army service showed further deterioration in his hearing over time.

34.     Mr D Hains, Otolaryngologist, confirmed in a medical report dated 30 September 2003 (T45) that the applicant’s hearing loss attributable to medical service was 8.6 percent and he confirmed a 5 percent whole body disability arising from tinnitus.

35.     A further hearing assessment carried out in November 2003 indicated a total percentage hearing loss at that date of 14 percent (T47).  Of that sum, 8.6 percent was attributed to Commonwealth employment plus a further loading for tinnitus.

consideration

36.     Although the applicant presented as a reasonable and intelligent human being, his evidence on some issues was, in the Tribunal’s view, unreliable.  Where there was a contradiction between his account of events in 1975 as given to the Tribunal, and his account of events in 1975 as given to medical specialists and in his original claim, the Tribunal prefers the history that he gave in 1975, 1976 and later when being assessed by medical specialists for the purposes of compensation.  The Tribunal is satisfied that the applicant either consciously or unconsciously, coloured his evidence to put forward the best possible case for compensation.

submissions

37.     The applicant’s submissions were somewhat convoluted, and at times it was difficult to understand exactly what outcome he was seeking in this application.  He essentially asked the Tribunal to find a way of awarding him a better compensation payment for his hearing loss and tinnitus than that already awarded.  He submitted that his entire disability should be dealt with under the 1988 Act, and that it was not appropriate to pro-rata his hearing loss between two separate pieces of legislation.  He contended that his tinnitus also arose under the 1988 Act.  He contended that the hearing loss and tinnitus from which he suffers is an injury and not a disease, and that all compensation should be assessed under the 1988 Act.  He argued that his hearing loss under the 1988 Act was 14 percent and the tinnitus gave him a further 5 percent for hearing impairment.  He then proposed that legislative amendments that relate to an injury being suffered after 1 October 2001, should apply in his case.  This argument appeared to be based on an argument of equity and fairness rather than on any legal point.  These amendments had lowered the threshold for lump sum payments in hearing loss cases.

38.     The respondent’s submission was that the injury from which the applicant suffers is bilateral noise induced hearing loss with tinnitus with a deemed date of injury of 24 June 1975.  The respondent submits that it is appropriate to allocate the hearing loss over the entire period of the applicant’s Army service in the way that it has been done by the Authorised Review Officer and that the result is beneficial to the applicant in that at least he receives a whole person impairment payment under the 1971 Act, whereas if the entire impairment was allocated under the 1988 Act, he would have no entitlement to a whole person impairment as his overall impairment would be less than the 10 percent threshold set out in that Act.  There is no provision for entitlements to lump sum payments in respect of tinnitus under the Act in force at the time that the tinnitus became permanent, namely the 1971 Act.  The respondent submitted that the evidence points to the tinnitus being a permanent condition prior to the commencement of the 1988 Act.

39.     Counsel for the respondent submitted that although the respondent had been very generous in the way in which they had approached the issue of the applicant’s hearing loss, they were not asking the Tribunal to alter the agreed level of impairment as set out in the determination of May 2005.

findings of fact

40.     The Tribunal makes the following findings:

·The Tribunal refers to the matters set out in paragraph 9 and makes those findings as a matter of fact.

·The applicant attended an Army Reserves camp in 1974 and was exposed to almost constant gunfire.  He developed perpetual ringing in his ears thereafter.

·In June 1975 an ear, nose and throat surgeon, Mr Barnett, made a provisional diagnosis of traumatic sensorineural hearing loss secondary to acoustic trauma and bilateral tinnitus following exposure to constant firing from guns.

·The applicant continued to be exposed to noise blast from field artillery firing and small arms fire on a number of occasions in each year.  Although advised to use noise protection, the protection used by him or provided to him was sometimes not entirely adequate and at other times he would be unexpectedly exposed to gunfire, particularly when he was the roving sentry responsible for perimeter clearance of the range area.  On those occasions he would usually have no ear protection on at all. 

·The applicant’s exposure to gunfire decreased from the early 1980s onwards.

·Audiometry carried out from time to time during his years of Army service indicated continued deterioration in his hearing and his hearing loss immediately following his discharge from the Army Reserves in October 1999 was assessed at 8.6 percent.  At the time his tinnitus was considered to cause an additional one percent whole body impairment.  That percentage increased to 3 percent and then 5 percent by September 2003.

·The applicant’s tinnitus has progressively worsened over the years.

·Hearing loss suffered since the applicant’s discharge from the Army Reserves is not related to his Army service and is likely to be related to other external factors.  When his exposure to gunfire ceased, his hearing loss due to acoustic trauma ceased.  Based on the audiogram carried out on 26 November 2003, the hearing loss for the purposes of this application for review is to be taken as being 9.7 percent prior to 1 December 1988 and 4.3 percent after that date.  Using the approved Guide the 4.3 percent hearing loss after December 1988 translates to a 2.15 percent whole person impairment.

·Permanent sensorineural hearing loss was objectively evident from 1975 onwards and the tinnitus was ongoing from 1974 onwards, but became more noticeable to the applicant and a more significant problem as his hearing loss deteriorated.  The tinnitus was established and continued virtually unchanged from the mid 1970s onwards.  In that regard the Tribunal refers in particular to T5 and the applicant’s statement annexed to his claim for compensation dated 29 June 1999 in which he asserts that he had a permanent ring in his ears from 1974 onwards.

application of the law

41.     The applicant lodged his claim in 1999 after completing his service with the Army Reserves.  His Army Reserves service occurred both under the 1971 and the 1988 Acts.

42.     The applicant seeks compensation under ss 24 and 27 of the 1988 Act.  Section 24 provides that the Commonwealth is liable to pay compensation to an employee in respect of an injury in certain circumstances.  Section 24(5) provides that the degree of permanent impairment is determined under the provisions of the approved Guide.  Section 24(7A) provides that in the event of hearing loss being permanent impairment then if the binaural hearing loss suffered by the employee results in less than 5 percent whole person impairment, no sum is payable for permanent impairment.  Percentage of whole person impairment is established by the Guide.

43.     Under s 27 of the 1988 Act, payments can be provided for non-economic loss where a certain percentage of permanent impairment is reached and there is an entitlement under s 24 of the 1988 Act.  Therefore there is no entitlement under s 27 if there is no entitlement under s 24.  Section 124(3) sets out the further qualification that if an impairment occurred before the commencement date of the 1988 Act and a person was not entitled to receive compensation of a lump sum in respect of that impairment under the earlier Act then they are not entitled to compensation under the 1988 Act.

44.     No one is disputing in this case that the applicant suffers an impairment, namely the loss of use or partial loss of use of his hearing.  The word “permanent” is defined in s 4 of the 1988 as “likely to continue indefinitely”.

45.     The Tribunal is satisfied, based on all the evidence, that the hearing loss from which the applicant suffers commenced in 1974.  Medical evidence establishes that the damage that was first done was permanent and the tinnitus was ongoing.  In that regard the Tribunal does not accept the applicant’s evidence that there was a substantial period of remission in the tinnitus.  The Tribunal is satisfied that the hearing loss commenced in 1974 as did the tinnitus which was secondary to the damage done in 1974.  The tinnitus was well established and permanent, ie likely to continue indefinitely, well before the commencement of the 1988 Act.  The tinnitus is therefore an impairment that arises under the 1971 Act.

46.     This case involves a consideration of how the transitional provisions under the 1988 Act are to be applied.  Section 124(3) provides that a person is not entitled to compensation under ss 24 or 25 of the 1988 Act in respect of a permanent impairment that occurred before the commencement date of the Act, if the person was not entitled to receive compensation of a lump sum in respect of that impairment, under the earlier Act. 

47.     Blackman v Australian Telecommunication Corporation (1990) 12 AAR 11 was referred to by the respondent to support the contention that if the Tribunal finds that the impairment occurred prior to the commencement of the 1988 Act, then s 124(3) applied and the Tribunal must consider whether the particular impairment would have given rise to an entitlement for a lump sum payment under that Act. This case was also referred to in the context of the applicant’s contention that the worsening of his hearing condition and his tinnitus after the commencement of the 1988 Act could amount to a new impairment and therefore be considered under the provisions of that Act.

48.     Blackman’s case specifically rejected the contention that the worsening of an impairment can amount to another distinct impairment.  In that regard the Full Court commented as follows:

“To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of sub-s. 124(3), different language would have been necessary.  The natural reading of “impairment … that occurred before the commencing date” is such as to cover the case in which there is but a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.”

49.     In that case the applicant was not entitled to compensation under ss 24 and 25 of the 1988 Act because the Court found that his condition of mesothelioma came into existence before the commencement date of the 1988 Act.

50.     The Tribunal is satisfied in this case that both the hearing loss and the tinnitus were permanent in the sense that they were likely to continue into the foreseeable future well before the commencement date of the 1988 Act.  There are no lump sum payments available for tinnitus under the 1971 Act, and therefore the applicant has no entitlement to a lump sum payment for tinnitus.  The Tribunal is not satisfied that the worsening of the condition after 1988 amounted to a new and distinct impairment.

51.     With respect to the applicant’s hearing loss, it was a permanent impairment which worsened over a period of time.  The reviewable decision accepted a hearing loss of 14 percent as being service related, which was generous given the medical evidence that the audiograms of 1999 done shortly after the applicant ceased his service provided the base line of what his service related hearing loss was.  At that point his hearing loss was 8.6 percent, but the applicant’s determination and persuasive skills seem to have resulted in a much more favourable finding of percentage hearing loss related to service.  The Tribunal has not been asked to interfere with that aspect of the decision. 

52.     The applicant relied on the case of Telstra Corporation Limited v Giovanni Angelica, Federal Court, 14 July 1994, 491/1994 where Olney J in reference to the point when “permanence” occurs commented:

“In many cases, if not virtually every case, it will not be known if the impairment is permanent nor will it be possible to assess the degree of permanent impairment until there has been some stabilisation after treatment.”

53.     The Tribunal accepts that permanence may sometimes be hard to establish until such time as the condition has stabilised.  However, in this case the hearing loss suffered by the applicant was followed over a number of years by audiograms and at points in time could be mapped as to the degree of ongoing permanent loss that had occurred.  There were at least nine audiograms and hearing tests carried out between 1975 and November 2003 which were available for the Tribunal’s consideration in the brief of medical evidence and in the T documents.

54.     The first audiograms of September 1975 show a permanent sensorineural hearing loss in each year and tinnitus was reported at the time.  This was secondary to the damage that had occurred.  Expert evidence is that noise induced hearing loss is permanent at the time of loss and so the hearing loss was permanent and progressive from 1975 onwards.  Mr Webb and Dr Baker expressed no difficulty with using the method of a pro-rata calculation of hearing loss pre and post 1988 as has been used in this instance.

55.     The applicant seeks to have his entire permanent hearing impairment dealt with under the 1988 Act.  In Comcare v Maida (2002) 36 AAR 69, Justice Mansfield undertook a thorough review of the authorities with respect to s 124(3) of the 1988 Act. He commented after considering earlier cases:

“… the policy underlying s 124, as also stated in Hoyle, is that where the entitlement to compensation under the SRC Act has a relevant nexus with a period before the commencement of that Act, an employee is not to be deprived of any compensation that would have been payable under the earlier applicable legislation, but is not to be entitled to any greater compensation than would have been payable under the repealed statutory scheme.”

56.     Section 124(3) is quite specific that a person is not entitled to compensation under ss 24 or 25 in respect of a permanent impairment which occurred before the commencement date of the 1988 Act.

57.     The only basis on which the applicant could establish that his hearing loss or tinnitus became permanent under the 1988 Act, in the Tribunal’s view, would be if he could establish that new impairments arose under the 1988 Act.  It is clear from the medical evidence that these conditions were established from 1975 onwards and progressively worsened over the years.

58.     In Maida’s case Justice Mansfield reviewed the prior authorities on the issue of whether the progression of a disease can amount to a new impairment.  He accepted a number of propositions put forward by the applicant in that case as correctly summarising the state of law and they are as follows:

“20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.

20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.

20.3 A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment."

59.     It is quite clear from the medical evidence available that there has been no change in the underlying patho-physiological condition from which the applicant suffers.  It is also clear that an acceptable method of dealing with this deterioration is to pro-rata it across his period of Army service.  His exposure to noise was largely prior to the commencement of the1988 Act.  Audiograms established that the progression was ongoing throughout the entire period of his Army service.

60.     In the circumstances the Tribunal finds that both tinnitus and hearing loss were permanent impairments in that they were likely to continue indefinitely well prior to the commencement of the 1988 Act.  Both impairments must be considered in light of the transitional provisions contained in s 124(3) of the 1988 Act.  The applicant’s entitlements stand to be considered pursuant to the provisions of the 1971 Act.  Tinnitus is not compensable by a lump sum pursuant to the 1971 Act as that Act did not provide for lump sum compensation for tinnitus.

61.     Hearing loss was compensable by a lump sum and the issue becomes “when did the hearing loss happen?”.  The delegate has been particularly generous in his assessment of service related hearing loss given medical evidence that any loss after discharge would not referable to service.

62.     No authorities were referred to as such with respect to the division of the hearing loss between two different periods, although it does not affect the outcome in any way.  The impairment was permanent prior to 1 December 1988.  The impairment has been allocated as between two periods of time.  The experts supported this approach as being entirely reasonable given the nature of hearing loss which in this case was documented as being progressive over a long period of time.

63.     The percentage hearing loss that occurred prior to 1988 has been properly dealt with by the delegate.  The hearing loss post 1988 is to be considered by reference to the Guide to establish what percentage of whole person impairment that loss translates to.  In this case it translates to 2.15 percent whole person impairment which is below the threshold at which an entitlement to lump sum compensation begins.  An entitlement under s 27 of the 1988 Act is dependent upon an entitlement under s 25 of the 1988 Act.

64.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)

Signed:         ...........J Coulthard...........................................
  Associate

Date of Hearing  24 March 2006
Date of Decision  16 August 2006
Applicant  In person
Counsel for the Respondent     Mr J Wallace
Solicitor for the Respondent     Sparke Helmore