Raymond Treen and Comcare
[2013] AATA 22
•18 January 2013
[2013] AATA 22
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5156
Re
Raymond Treen
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 18 January 2013 Place Perth The Tribunal varies the decision under review by determining that the respondent is liable to pay compensation to the applicant in respect of an injury, namely, "unspecified hearing loss (Bilateral)", under s 24(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act"), on the basis that the degree of permanent impairment of the applicant resulting from that injury, for the purposes of s 24(5) of the SRC Act, is 19.25%. In all other respects, the decision under review is affirmed.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
....................[sgd]...................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – applicant suffered hearing loss – applicant's hearing loss a compensable injury – applicant's hearing loss has resulted in permanent impairment – applicant's degree of whole person permanent impairment is 19.25% – respondent liable to pay permanent impairment compensation to applicant on that basis – decision under review varied
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 24 and s 27(1)
Guide to the Assessment of the Degree of Permanent Impairment (2nd ed), Ch 7.1
REASONS FOR DECISION
Deputy President S D Hotop
18 January 2013
Introduction
Raymond Treen (“the applicant”), who is presently 64 years of age, was at all material times employed as a Customs Officer with the Australian Customs and Border Protection Service.
On 4 February 2009 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “industrial deafness” in both ears. Comcare (“the respondent”) initially denied liability in a determination dated 21 May 2009 but, in a “reviewable decision” made on 27 July 2010 under s 62 of the SRC Act, the respondent revoked that determination and accepted liability under the SRC Act to pay compensation to the applicant for “unspecified hearing loss (Bilateral)” (“the injury”).
On 12 August 2010 the applicant made a claim for compensation for permanent impairment, pursuant to s 24 of the SRC Act, in respect of the injury.
On 13 September 2011 the respondent made a determination that the applicant was suffering a permanent binaural hearing loss of 7.3% and that, accordingly, his “whole person impairment” rating under Chapter 7.1 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed) (“the approved Guide”) was 3.65%. The respondent also made a determination regarding the amount of compensation payable to the applicant for permanent impairment pursuant to s 24 of the SRC Act and for “non-economic loss” pursuant to s 27 of the SRC Act.
Following a request by the applicant for a reconsideration of the determination of 13 September 2011, the respondent made a “reviewable decision” under s 62 of the SRC Act on 25 November 2011 affirming that determination.
On 1 December 2011 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision of 25 November 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T54, pp 1–195) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A3 tendered by the applicant;
·Exhibits R1–R4 tendered by the respondent: and
·the oral evidence of the applicant, and Mr John Harlock and Dr Alastair Mackendrick (who were called by the applicant) and Dr Ian Mitchell (who was called by the respondent).
The Applicant’s Evidence
The applicant confirmed that he had prepared an Incident Report, dated 27 January 2009, in support of his claim for compensation made on 4 February 2009, and that its contents are true and correct. The contents of that report are as follows:
“ Over a period of years, whilst attending duty at Passenger Processing during October 1993 to December 1998, one of the criteria’s was to perform the duties of boarding officer.
This criteria was to meet all incoming aircraft arriving on the tarmac and finger to collect general declaration of crew and to discuss if any problems occurred to passengers during the flight.
On the arrival of aircraft this was very taxing on the ears as aircraft engines were extremely loud. And even with the usual ear protection the continuous noise from engines was quite loud, not realising at the time that the noise would effect my hearing several years on.
In September 2002, I was then transferred to Air-Response and one of the duties pertaining to the position was to perform tarmac patrol and aircraft searches. During this time I found the aircraft engines extremely loud.
After twelve months of carrying out these duties I was allocated a pair of earmuffs which help considerably to easing noise intrusion on my ears. Prior to this the only support to protecting our ears were ear plugs, in which several other officers and I had problems as they kept falling out on a regular basis, due to the bending, climbing etc on conducting duties of tarmac and aircraft duties.
In carrying out these duties I found aircraft engines extremely loud. From this point on I consider that my hearing has steadily deteriorated over time. I have to ask people talking to me to repeat them simply because I missed hearing them.
In February 2005 I moved to CEF my current work area. This environment can be noisy on occasions (eg: Fork lifts operation around the warehouse, Trucks entering and leaving the warehouse and the mobicon lifting containers on and off trucks.
I also advise that I’m a member of Brass Band and practise over a period of a year with the band (30) thirty weeks a year a 2 hours a week. The other (22) weeks of the year I miss because of shift work and the band go into recess during school holidays. Engagements I attend work out to approximately 10 a year. I attend one in three due to shift work.
In normal daily events I have found difficulty in deciphering voices. Even to the extent that I’m unable to detect my own daughters voices over the telephone.
I have to listen extensively to hear what people are saying over the phone, and have several times misinterpreted on what they have said.
Also find more difficult if there is background noises.
In using mobile phone in most cases I have to call them back if there are any background noises.
In attending meetings or training sessions I lose focus on what the speaker is saying especially when he or she change volume of there voice, or if another person interjects and there’s more than one person speaking, I then have great difficulty in understanding what anybody is saying.
In my home with my family I’m constantly asking ‘What did you say’ and they have to repeat it many times a day.
On many occasions I have had difficulty in obtaining verbal instruction from my supervisor, especially whilst on the floor, or in the control room when other staff are talking.
On several occasions team member have commented about me when I have missed what was being said, and I come later on the same subject. This has happened several times whilst attending family gatherings.
I consider that over the past four years my hearing has deteriorated immensely and carrying out these duties in Passenger Processing and Air-Response would have contributed to my hearing loss today.” (sic) (T4)
The applicant also confirmed that he had signed an Outline of Evidence, dated 17 August 2012, for the purpose of this matter and that its contents are true and correct. The applicant’s Outline of Evidence states as follows:
“1. This outline of evidence is supplementary to the Incident Report I made in support of my claim for workers’ compensation dated 27 January 2009 (T4).
2.Since making that Incident Report I have retired from the Australian Customs and Border Protection Service.
3.As a result of the hearing loss I sustained in the course of my employment I have now been fitted with hearing aids to both my left and right ears.
4.I continue to experience tinnitus in both ears. The tinnitus is constant throughout the day however it is more severe of a morning.
5.Without the use of my hearing aids I continue to be unable to hear persons on the telephone and have significant difficulty hearing what people say to me in conversational tones, particularly if there is background noise present.
6.Other than my work duties I have not been exposed to significant or sustained noise in my personal life.
7.Prior to being exposed to significant noise for prolonged periods of time in the course of my employment I did not suffer from any hearing loss and was able to conduct my day to day duties and conversations without difficulty.” (Exhibit A1).
In his examination-in-chief the applicant gave additional evidence to the following effect:
·he worked as a customs officer from 1983 to 2010;
·he was then unemployed for about 12 months before commencing his present position as a part-time security officer at Customs House in November 2011;
·in the period 1983–1993 his work duties were administrative;
·in 1993 he was transferred to Perth International Airport where his duties comprised processing passengers and boarding incoming aircraft;
·while waiting to board incoming aircraft he was generally positioned in the “finger” (or aerobridge) at the terminal gate but occasionally, when it was “extremely busy”, he was required to be on the tarmac for the purpose of boarding “the odd commercial aircraft” or a private aircraft’
·when on the tarmac he bore “the full brunt of the engine noise”;
·he was supplied with “little yellow” earplugs but they were “pretty useless because they kept falling out”, especially if he was climbing ladders or performing similar activities;
·he worked an 8-hour shift each day (40 hours per week), of which 2 hours per shift involved boarding aircraft, and he was exposed to “the full thrust” of aircraft engine noise for about three-quarters of an hour to one hour per shift;
·those circumstances continued for the entire period of 5 years (1993–1998) that he worked at the airport;
·he was then transferred to the international mail exchange where he worked for 4 years until September 2002 when he was transferred to Air Cargo;
·he worked at Air Cargo from September 2002 to February 2005;
·his work at Air Cargo included tarmac patrol and aircraft inspections/searches;
·when an aircraft was landing while he was doing tarmac patrol, “you couldn’t hear anything … you just put your fingers over your ears to stop the full noise, to help stop it”;
·when he did aircraft inspections/searches, the aircraft was on the tarmac “a good 200 to 300 metres” away from aircraft coming in to land;
·his work at Air Cargo involved a 12-hour shift per day, of which he spent 2 hours in every shift on the tarmac, and, if he was required to do an aircraft search, that would take up to 2–3 hours to complete;
·in February 2005 he was transferred to the “Cargo Enforcement Facility” at Fremantle where he worked until the end of 2009.
In cross-examination the applicant was referred to a document entitled “Statement of Facts in Relation to Compensation Claim for Raymond Treen …” prepared by the Australian Customs and Border Protection Service, dated 11 March 2009, addressed to “Comcare Claims Officer”, which states as follows:
“ Background
Mr Raymond Treen has lodged a claim for compensation for industrial deafness. Mr Treen indicates in his claim that the injury was sustained between October 1993 and December 1998 whilst a Boarding Officer at Perth International Airport and between September 2002 and February 2005 whilst an Air response Officer in Air Cargo Operations at Customs House Perth Airport.
Supervisors and managers of these areas during the timeframes mentioned have since retired and it has been difficult to locate job description documents from these periods. I have received information from the current work area managers, …, however due to the historical nature of the claim some of the information provided in this document is of a general nature.
October 1993 to October 1998 Passenger Processing
Our records indicate that Mr Treen was stationed at Perth International Airport between October 1993 and October 1998. We are unable to confirm that Mr Treen performed the duties of a Boarding Officer during this period however it is very probable that he did so. Mr Treen would not have performed these duties for the entire period as the role is filled on a rotational basis by various staff members. It is impossible to ascertain the exact amount of time that Mr Treen spent in this role but Mr Treen would have spent a considerable amount of time conducting general passenger processing duties such as baggage examination and immigration work.
The duties of a Boarding Officer during this period would have mainly consisted of office based paperwork but the boarding officer would have been required to meet all arriving aircraft (average of 5 per shift) at the dismemberment (sic) gate to collect paperwork. This area is inside the building of the terminal and not on the tarmac area. This area can get particularly noisy when the aircraft turns off its engines. Some flights, usually itinerant or military aircraft, were boarded from the tarmac on an ad hoc basis. Ear muffs were provided to staff for ear protection.
September 2002 to February 2005 Air Response
In relation to the type of work undertaken in the Air Cargo environment during that period, I can provide the following information gleaned from discussions with staff who also worked in the area. The area that Mr Treen refers to is now known as Air Cargo Operations and consists of three shifts (comprising seven staff) that are responsible for the examination of air cargo arriving from overseas.
During the period that Mr Treen refers to in his claim the area was known as Air Cargo Response and was made up of four teams (comprising five staff) and had twenty two and a half hours of coverage daily, at Customs House Perth Airport. Hours of attendance were 0600 – 1800 hrs and 1800 – 0430 hrs.
Duties for Air Response staff included the examination of air cargo arriving from overseas, aircraft search, tarmac patrols and perimeter patrols. Aircraft search and tarmac patrol duties involved being present for the arrival of international aircraft, either on the tarmac or the flight deck arrival area. Aircraft searches were conducted once the aircraft had shut down the engines, and perimeter patrols were conducted in a vehicle.
Air cargo examinations were conducted at Container Terminal Operators (Qantas and Menzies) as well as the express courier operators (DHL, FedEx etc). On some occasions, Air Response staff would assist at the International Terminal Building for the processing of arriving passengers.
There was no set division of duties between work on arriving aircraft or cargo examinations, as this was largely governed by the time of day and aircraft arrivals. It is estimated that the ratio of work would be approximately 50-50.
I am informed that OH&S personal safety equipment was issued to staff, though I am unable to confirm which year this would have been initiated.
The type of equipment included:
Safety boots
High visibility vests
Appropriate uniforms
Sunglasses
Ear muffsPrevious Claims
There are no previous incident reports in Customs systems relating to Mr Treen’s hearing.
Other Relevant Information
Mr Treen undertook a medical examination on the 27th January 2005 due to his move to the Container Examination Facility in North Fremantle. On the medical history questionnaire Mr Treen ticked yes to Question 16 (do you, or have you ever suffered from any hearing loss, deafness or abnormal noises in the ear? The examining doctor noted:
‘Ringing left ear 6 months. Associated with slightly reduced hearing. Has seen GP – given eardrops in Oct 2004. He will go back to GP for follow up.’” (T10)
In relation to that document, the applicant:
·agreed that he told the doctor who examined him on 27 January 2005, prior to his transfer to the Container Examination Facility (as stated under the heading “Other Relevant Information” at the end of that document), that he had experienced “ringing” in the left ear for 6 months “associated with slightly reduced hearing”;
·agreed that, in the period 1993–1998 when he was performing passenger processing duties and aircraft boarding duties at Perth International Airport, boarding duties were performed by staff on a rotational basis, but he added that he was performing boarding duties “at least two-thirds of the time [he] was there”.
The applicant reiterated the statement in the final paragraph of his Incident Report, dated 27 January 2009 (set out in paragraph 8 above), that his hearing had “deteriorated immensely” over the past 4 years – that is, from 2005. However, he added:
“ What I found is that my hearing had actually deteriorated when I was at Air Response [September 2002 – February 2005] more than any other – it had deteriorated, and then it was getting worse and worse, and tinnitus was very loud too.”
The applicant was questioned about the time he was first supplied with earmuffs. Although he had first stated in his Incident Report that he was “allocated a pair of earmuffs” after 12 months of performing tarmac patrol and aircraft search duties at Air Response (which he commenced in September 2002), in cross-examination he initially disagreed with that statement and said:
“ We didn’t get the earmuffs until actually December 2004 … We didn’t get any earmuffs until just before I left Air Response.”
However, he subsequently confirmed that the statement in his Incident Report was correct – that is, that he did not have earmuffs for the first 12 months of his service at Air Response, namely, from September 2002 to September 2003, but that he was supplied with earmuffs in or about September 2003.
The Evidence of the Medical Witnesses
Mr John Harlock
Mr Harlock, Otolaryngologist, said that he has practised ear, nose and throat surgery since 1994. He confirmed that he had examined the applicant and performed an audiogram on 23 February 2010 and that he subsequently prepared two reports regarding that examination.
Mr Harlock’s first report, dated 23 February 2010, which is addressed to Dr Chee Meng Chang, states as follows:
“ Raymond works for Customs he has worked for the Commonwealth for 44 years starting with the precursor of the DVA. The last 27 years he has worked in Customs, he has not had tests organised through that facility and never had a hearing test before 2008.
He has suspected hearing loss in about 2004 when he had problems with one-on-one conversation, it was around that time he also got tinnitus. He has had no problems with disequilibrium.
I performed air bone audiogram in a WorkCover WA accredited booth. This was the day after he had been working, but he was not exposed to excessive noise at work.
He did have bilateral sensorineural hearing loss, it was fairly symmetric, there was no significant conductive component.
I adjudged his hearing loss as 30.8% using the NAL tables and an adjustment was made for presbycusis leading to a final result of 29.8%.
He would benefit from the provision of hearing aids and I encouraged him to do so. He should of course avoid excessive noise exposure.” (part of Exhibit A3)
Mr Harlock’s second report, dated 19 April 2010, which is addressed to the applicant’s solicitors, states as follows:
“ In response to your letter of 17 March 2010 I provide the following details. Mr Treen works as a customs officer for the Commonwealth of Australia. He has been employed 45 years by the Commonwealth and the last 27 years he has worked in customs.
He suspected hearing loss first in about 2004 when he had problems with one-on-one conversation. It was around that time he also got tinnitus. He has had no problems with disequilibrium.
There is noise exposure at work. Insert plugs have been provided since 2002 and not before. He has worn them when their use has been mandated. He was partly responsible for earmuffs being provided and they were provided from 2004. He uses hearing protection when necessary and when mandated.
I respond to the questions you pose in your letter.
(a) the date on which you attended our client;
I saw Mr Treen on one occasion on 23 February 2010.
(b) injuries and symptoms being suffered by our client at that time;
Hearing loss and tinnitus of a sensorineural origin. This was causing functional deficit.
(c) the cause of our client’s injuries and symptoms;
Excessive noise in the workplace.
From my clinical history and examination I did not find a credible alternate (sic) cause of excessive noise exposure contributing to his hearing loss. He once was exposed to firearm testing in about 1968 as part of his work but he has never had any recreational exposure to firearms and rarely has he used power tools. He has been exposed to loud noise on a regular basis over 30 years at his work.
(d) the treatment you would recommend for our client;
No surgical intervention would be helpful. He would benefit from the provision of bilateral hearing aids.
(e) the likely development of our client’s condition into the foreseeable future;
There will be some contribution from presbycusis or age-related deterioration of the hearing. Assuming that hearing protection is provided as is appropriate, the expectation is that further losses would be limited.
(f) the likely treatment our client will require into the foreseeable future.
See answer to (d) above.
(g)our client’s ability to work, in detail, together with any limitations or restrictions you would impose upon the same, both as to the type of work our client can perform and as to the hours our client is able to work.
With appropriate hearing rehabilitation he could continue to work in the same environment doing the same type of work he is currently performing. He could work similar hours to now, there would be no restriction on his ability to work fulltime.
However, without hearing rehabilitation as achieved with bilateral hearing aids, work efficiency would be diminished. This would especially be the case where there is background noise from machinery or crowds and there is the need for precise verbal communication.
(h)the permanent percentage of impairment being suffered by our client as a result of his loss of hearing in accordance with Chapter 7 of the Comcare guide to the assessment of degree of permanent impairment, second edition.
I adjudged his hearing loss as 30.8% using the NAL 1988 tables.
Using the Comcare guide to the assessment of degree of permanent impairment, second edition, I adjudged the WPI as 15.4%.” (T30)
In his examination-in-chief Mr Harlock said that, in his assessment of the applicant’s hearing loss and “WPI” referred to in para (h) of his report of 19 April 2010, he did not include an adjustment for presbycusis. He confirmed that, had he done so, his assessment of the applicant’s binaural hearing loss would have been 29.8% (as stated in his report of 23 February 2010), and his assessment of the applicant’s “whole person impairment” in accordance with the approved Guide would have been 14.9%.
As regards the cause of the applicant’s hearing loss, Mr Harlock said that he accepted that the applicant “was exposed to a lot of noise at work” and he “didn’t go into that in great detail”. He said that he was more concerned to determine whether the applicant had been exposed to noise outside of his work which might have contributed to his hearing loss. He added that he “didn’t feel there were any significant contributors outside of work”.
Mr Harlock confirmed that, in assessing the applicant’s hearing loss, he “included all frequencies, including those below 2000 hertz”. He said that he agreed with Dr Mitchell’s opinion (see paragraphs 32–33 below) that hearing at frequencies below 2000 hertz is only affected after a prolonged exposure to intense noise, and that he was “well-aware” of the “guidelines” referred to in Dr Mitchell’s report. His evidence continued:
“ Okay. Now, Mr Treen, in his evidence this morning gave some evidence that between October 1993 and September 1998 he worked as a boarding officer where he would work shifts, and at least two hours of each shift he would be on the tarmac, and I think his evidence was that three-quarters of an hour, to an hour of that time, he would be exposed to the full thrust of jet engine noise. Would you consider that to be an intense noise? --- There is a probability with close proximity to that, that that is intense noise and would contribute to gradual onset occupational exposure noise damage, as well as percussive acoustic shock as well in addition.
Okay. Mr Treen also gave some evidence that from September 2002 to February 2005 he carried out tarmac patrols on the tarmac of the Perth international airport, and conducted aircraft searches again for about two hours each shift, possibly a little more depending on operational requirements, for about four days to five days per week. Would you consider that to be a prolonged exposure to an intense noise? --- Yes, I would. Especially – that would be mitigated of course by the provision of hearing protection, but without that there would be extreme exposure.
Now, Mr Treen gave us some evidence that he also used if I call them earplugs, the inserts into the ear, and later some ear muffs; does that completely ameliorate the effects of the extreme noise that you describe? --- In part it does. Not completely.
Does that prevent – does it completely prevent the suffering of noise-induced hearing loss? --- Well, it does nothing to noise sustained before the provision of plugs, but after provision of plugs it would decelerate the noise damage. It wouldn’t completely mitigate it, it wouldn’t completely abolish it.”
Mr Harlock was referred to Dr Mackendrick’s report of 7 August 2012 (set out in paragraph 22 below) and the enclosed audiogram of that date. He said that that audiogram “wasn’t an awful lot different from” the audiogram he performed on 23 February 2010. He added:
“ It was a little bit worse in some instances … There was a little bit of deterioration as one might expect over … two years.”
In cross-examination Mr Harlock confirmed that it was his understanding that the applicant had been “exposed to loud noise on a regular basis over 30 years at work”. He reiterated that he did not take a detailed occupational history from the applicant because he was more concerned to try to ascertain “if there were alternative causes to (sic) his hearing loss, from disease or out-of-work noise exposure”.
Dr Alastair Mackendrick
Dr Mackendrick said that he has been a medical practitioner since 1971 and an ear, nose and throat specialist since 1982. He confirmed that he had examined the applicant on 7 August 2012 and had subsequently provided a report to the applicant’s solicitors. That report states as follows:
“ I examined your client on the 7th August 2012.
He gives a history of having been exposed to noise in the work place while working as a customs officer at the airport. Most of the noise occurred over two years when he had to do aircraft searches which would last for one to two hours, four days out of five most weeks. This period was around 2003 and 2004. Within a month of starting this type of work, he developed tinnitus. He also noted that after he had been exposed to the noise of aircraft engines, he would have temporary threshold shift or a drop in his hearing. This is usually an indication that there has been quite significant exposure to noise.
Around 2004 he started to become aware that his discrimination ability where there was background noise, had decreased. Since that time he feels his hearing has diminished slightly more. The tinnitus however which was initially severe, has become less intrusive and it is no longer significant although he says it is very loud in the mornings. There is nothing else in the history to suggest an alternate (sic) cause for his current hearing loss and tinnitus. There is no family history of hearing problems.
On examination, his ears look healthy and normal. However reviewing the audiogram, it does confirm the presence of a sensorineural loss which is present across all frequencies but worse in high frequencies. The audiogram done today shows only very slight deterioration from that done in 2012 (sic). The configuration of the audiogram is consistent with his history of noise exposure.
My impression of your client was that his history was reliable and honest.
Using standard NAL tables, I calculated his percentage hearing loss to be 40.5% and presbycusis factor of 2% is deducted. Nothing is added for his tinnitus. I note that one of the previous examiners did not use frequencies below 2000 hz, but in the absence of any other factors to suggest a cause for this hearing loss, I have assumed this is due to noise exposure. This can then be divided by 2 to work out the permanent impairment which results in a WPI of 19.25%.” (part of Exhibit A2)
In his examination-in-chief Dr Mackendrick was referred to Dr Mitchell’s opinion that, in the applicant’s case, frequencies below 2000 hertz should not be included in the assessment of noise-induced hearing loss, and to the Guidelines for Evaluation of Occupational Noise Induced Hearing Loss of Gradual Process, published by The Australian Society of Otolaryngology – Head and Neck Surgery, referred to by Dr Mitchell (see paragraphs 32–33 below). He confirmed that he is familiar with those guidelines. Asked whether he applied those guidelines in his practice, he said:
“ Generally I do, but there (sic) are guidelines, and in my experience they’re not 100 per cent accurate because there are cases – they state that you perhaps shouldn’t use frequencies below 2000 hertz to calculate noise-induced hearing loss, and I’ve had many, many patients over the years that are continuing to have noise exposure, and initially their high frequencies are damaged but with time the low frequencies get dragged down too. So the low frequency (sic) can be involved. And where there’s an absence of any other cause, then it’s almost certain that this is the cause.”
Dr Mackendrick then gave the following evidence in response to a question from the Tribunal:
“ THE D.PRESIDENT: As I understand Mr Mitchell’s reports, and I may be misunderstanding him, but in terms of his reference to those guidelines, it really turns on whether there has been what he describes as a prolonged exposure to an intense noise. That seems to be the critical -? --- Well, that’s right.
sort of situation that he is talking about. And as I understand it, that frequencies below 2000 hertz are affected only if there is such prolonged exposure to an intense noise. And so the question I suppose then arises, the history that you took from Mr Treen, would you regard that as falling within that description of a prolonged exposure to an intense noise?‑‑‑Indeed, yes. Two hours of listening to a jet engine would be extremely noisy. I mean, that’s 115 decibels and of course people’s sensitivity varies. Some people go deaf with much lesser exposure than others. And that’s extreme noise, and I think in the history, Mr Treen stated that he spent 18 months or two years, four days a week, two hours a day, so I think that’s extreme.”
As regards the effect of the applicant’s use of earplugs and earmuffs, Dr Mackendrick commented as follows:
“ It’s certainly beneficial, but in my history he stated they were useless because they used to fall out, and so they weren’t generally used. And, in my experience, also I’ve had people who wear earplugs and ear muffs, and especially people who work on heavy machinery, and the sound goes right through that and they can still get progressive hearing loss from extreme noise. So it doesn’t cut it all out.”
Dr Mackendrick confirmed that, in the 4th paragraph of his report, the reference to an earlier audiogram was a reference to the audiogram done in 2010, not “2012” as incorrectly stated.
In cross-examination Dr Mackendrick was questioned about his knowledge of the details of the applicant’s exposure to aircraft engine noise. He acknowledged that:
·he was unaware how close the applicant had been to the jet engine, but his assumption was that he had been very close;
·he was unaware that, as regards the majority of incoming aircraft with which the applicant was dealing, he was positioned in the aerobridge awaiting the arrival of the aircraft.
He agreed that, in the aerobridge, the applicant would have been insulated to some extent from the noise of the aircraft engine, thereby reducing his exposure to that noise. He also agreed that the wearing of earplugs or earmuffs would be expected to result in a 10–15 decibel attenuation, or a 20 decibel attenuation, respectively.
Finally, Dr Mackendrick was asked whether the applicant’s hearing loss might be attributable to “age-related causes”. His evidence was as follows:
“ He is quite young. So he is not at the time when there is a significant age element. And aging hearing loss is usually just in the high frequencies, and his is different. He has got hearing loss right across all frequencies.
Yes. All right. In respect of the understanding of hearing loss as a result of exposure to noise, is the general consensus within your field of expertise, that the hearing loss happens around about the time of the exposure? --- Most of it but not all of it.
I see. Right? --- There can be a subsequent deterioration.
Yes. And in terms of – and do the studies also say that in terms of the subsequent deterioration of hearing loss, you don’t expect a dramatic decrease later on because of that noise-induced ? --- Not a dramatic – but, in my experience, people who have been exposed to noise get a much more rapid deterioration in hearing with age, than people who haven’t been exposed to noise.”
Dr Ian Mitchell
Dr Mitchell said that he has been practising as an ear, nose and throat specialist for “about 30 years”. He confirmed that he had examined the applicant on 26 April 2012 and subsequently provided three reports to the respondent’s solicitors.
Dr Mitchell’s first report, dated 1 May 2012, states as follows:
“ …
I saw Mr Treen in my rooms for the purpose of this report on 26 April 2012. As requested I performed a pure tone audiogram.
…
Background to the claim:
Mr Treen is a 64 year old retired customs officer who is claiming for hearing loss he considers is related to his employment. On questioning Mr Treen about his exposure to loud noise he responded that for about 2 hours a day for approximately two and a half years he was exposed to the noise of jet engines whilst on duty on the tarmac at Perth Airport. Hearing protection was provided for some of the time he was on duty.
I note your background to the claim and your concern that there is a disparity in the percentage of hearing loss due to the noie (sic) exposure assessed by an otolaryngologist, Mr John Harlock and an audiologist Mr Sean Fitzpatrick.
In reply to questions:
3.1Having regard to the audiogram dated 28 (sic) February 2010, please calculate the binaural percentage loss of hearing that results from Mr Treen’s former Commonwealth employment (that is, the corrected compensable loss). Please provide a copy of your worksheet/calculations.
In making my calculations I have used the NAL tables (January 1988) to calculate the percentage hearing loss from the audiogram dated the 28 (sic) February 2012.
I have discounted hearing loss due to frequencies below 2000Hz as this hearing loss is not due to noise exposure. I have deducted 1.2% (sic) for presbycusis.
FREQUENCY % HEARING LOSS
500Hz 0.0
1000Hz 0.0
1500Hz 0.0
2000Hz 3.8
3000Hz 4.1
4000Hz 4.1
6000Hz 2.3
8000Hz 0.8
TOTAL 15.1
Less Presbycusis (1.3%) 13.8%
Binaural percentage loss of hearing due to noise exposure 13.8%.
…
3.3In your view, does the audiogram dated 28 (sic) February 2010 suggest that the applicant exaggerated his responses?
In my view it is likely that the elevated hearing thresholds in the audiogram of February 2010 compared with the audiogram in November 2010 is due to testing error. My opinion is that it is unlikely that the applicant exaggerated his responses.
3.4Your assessment as to Mr Treen’s binaural percentage loss of hearing at the time of your examination.
I have calculated Mr Treen’s percentage loss of hearing using the audiogram obtained on the 26 April 2012 as 26.1% (deducting 2% for presbycusis).
…” (part of Exhibit R1)
Dr Mitchell’s second report, dated 6 June 2012, states as follows:
“ Thanks for your fax of the 6 June 2012 requesting that I calculate the binaural percentage of hearing loss that results from noise induced hearing loss as reflected in the audiogram dated 26 April 2012.
I used the NAL report number 118 to calculate the percentage hearing loss.
I have deducted 2% hearing loss for presbycusis (age related loss of hearing) as per the NAL report.
In calculating Mr Treen’s percentage noise induced hearing loss I have discounted readings below 2000Hz as being unlikely to be due to noise exposure.
I have calculated Mr Treen’s percentage occupational noise induced hearing loss using the audiogram on the 26 April 2012 as 13.9%
…” (part of Exhibit R2)
Dr Mitchell’s third report, dated 19 September 2012, states as follows:
“ Thanks for your letter of the 6 September 2012 requesting a further report based on Dr Alistair MacKendrick’s (sic) report of the 7 August 2012.
Matters on which an opinion is sought
1.How do you view the frequency readings given by Dr MacKendrick against those of your own assessment on 26 April 2012.
The frequencies of the audiogram performed on the 7 August 2012 for the left ear are similar to the thresholds obtained from the left ear on the 26 June 2012. On the right there has been an increase in the air conduction thresholds at 1500, 2000 and 3000Hz. The bone conduction thresholds remain the same. I do not consider the difference in air conduction thresholds to be significant.
2.Whether you agree with Dr MacKendrick that if there is no other explanation for hearing loss below 2000Hz you can (or should) take these readings into account when assessing permanent impairment for bilateral hearing loss. What are your reasons for this.
My opinion is that frequencies below 2000Hz are affected only after a very prolonged exposure to intense noise. Mr Treen gave me a history of exposure to the noise of jet engines whilst on duty on the tarmac at Perth Airport. He was exposed to loud noise for about 2 hours a day for approximately two and a half years. This may be significant noise exposure but it does not sound like prolonged exposure to an intense noise.
3.What frequency readings below 2000Hx (sic) (if any) did you obtain from Mr Treen when you examined him on the 26 April 2012.
The frequency readings were as follows:
Hz Right Left
250 35 40
500 30 35
1000 30 30
4.In respect to question 3, if your frequency readings below 2000Hz were different to the readings of Dr MacKendrick, what reasons can you offer for this difference.
My frequencies below 2000Hz were essentially the same as those obtained by Dr MacKendrick.
5.Whether it can be confidently said that hearing loss below 2000Hz is attributable to noise damage in the absence of any other reason for the loss. If so, is there any general scientific reason(s) or published research articles explaining this.
I have previously stated that frequencies below 2000Hz are affected only after exposure for a very prolonged duration to intense noise. If it is accepted that Mr Treen was exposed to a prolonged duration of intense noise then it is possible that frequencies below 2000 Hz were affected.
My reference is the ‘Guidelines For Evaluating (sic) Occupational Noise Induced Hearing Loss Of Gradual Process’ published by The Australian Society of Otolaryngology Head and Neck Surgery (2nd Edition 2009).
6.Do you remain of the opinion that Mr Treen’s current percentage occupation (sic) noise induced hearing loss is 13.8% based on your own assessment.
I performed an audiogram on Mr Treen on 26 April 2012 and obtained percentage occupational noised (sic) induced hearing loss (less presbycusis 2%) of 14%. Therefore, my opinion is that Mr Treen’s occupational noise induced hearing loss (after recalculating % hearing loss) is 14%.
…” (part of Exhibit R3)
In his examination-in-chief Dr Mitchell referred to the extract from the Guidelines for Evaluation of Occupational Noise Induced Hearing Loss of Gradual Process (2nd ed, 2009) (“the Guidelines”) on which he relied in answering questions 2 and 5 in his report of 19 September 2012. That extract states as follows:
“ …
The historical features of ONIHL [occupational noise induced hearing loss] of gradual process are of possible TTS [temporary threshold shift] plus or minus tinnitus. The hearing loss is of gradual onset, bilateral and slowly progressive. Most occurs in the first 10 years after which the rate of progression slows. No progression occurs after noise exposure ceases. Continuous noise is more damaging than intermittent which tends to protect the lower tones.
The audiometric features are of a bilateral sensorineural hearing loss initially cochlear. The hearing loss commences between 3 and 6kHz inclusive and is always maximum in the high tones. The frequencies below 2kHz are affected only after exposure for a very prolonged duration to intense noise. Noise induced hearing loss is not flat, never profound and can never be total.
…” (Exhibit R4)
Asked what his understanding of the phrase “very prolonged duration” is, he said:
“ Well, eight hours a day … every day … probably for years.”
Asked what his understanding of the phrase “intense noise” is, he said:
“ … approximately 90 decibels and (sic) more.”
Dr Mitchell was then referred to the applicant’s evidence regarding his occupational exposure to noise in the periods October 1993–December 1998 and September 2002–February 2005 and asked to express his opinion, as follows:
“ Can I ask you, then, to assume if we then focus more specifically on Mr Treen, there’s – you did take a history as – of to some exposure to loud noise, and this is in your – also in your September report of two hours a day for approximately two and a half years. Can I ask you for the moment to assume the following – that this is the evidence that Mr Treen gave yesterday. There was a first period of exposure from October 1993 to December 1998 which is a period of about five years and two months. In that period of time, Mr Treen was working as a boarding officer, and so he was waiting for the planes as they came into the airport. The majority is of – the majority of the planes that arrived at the international airport in that time arrived on what’s described as the ‘finger’. So at the time they were arriving, Mr Treen was standing in the aerobridges at the airport. When the airport was more busy, or if there were private planes or military aircraft, he was sometimes required to be on the tarmac when the plane was coming – taxying in to stop. He performed – he was doing eight hours – eight-hour shifts as a boarding officer. Of that eight hours, a total of two hours was spent performing those specific boarding officer duties. The – if you can assume that those two hours were not in one block and that in those two hours the aircraft noise was not always at the same level, because – as you can assume that the plane taxies in and then shuts down its engines. If you can also assume that in that period, he was – so in that five years and two months, he was provided with ear plugs but didn’t necessarily wear them all the time because he gave evidence that sometimes he had trouble with them falling out, and also if you can assume that of those five years, it was two-thirds of that time that he was doing those specific duties, and the other time – so of the other third, he was working as a processing – processing ingoing passengers within the terminal. If you assume that is – I’m sorry – there was one other assumption. There’s some suggestion that the aircraft noise at the time of taxying in to the gate or to stop was in excess or between 115 and 118 decibels, although there’s no conclusive proof either way on that, but if you accept that that’s a suggestion that it might have been that loud, having regard to that – if you assume that’s the length of exposure, the duration and the noise levels, in respect of that period of employment, do you consider that that amounts to a very prolonged duration to – sorry – an exposure of a very long duration to intense noise? --- No.
No. And can you explain to the tribunal why not? --- Well, it’s not a continuous exposure, and my opinion is that being occasionally exposed to very loud noise is unlikely to give you permanent hearing loss.
Right. Okay. Can I then ask you to assume that there was a second period of employment at the airport, and that was from September 2002 to February 2005; it was a period of two years and five months. His duties were described as being air response which was doing patrols on the tarmac, being involved in searches of aircraft. He gave evidence that he worked a 12-hour shift at those times and generally spent two hours per shift doing those sorts of duties on the tarmac or doing aircraft searches, but sometimes up to five hours in a shift were spent doing those sorts of activities because if – his evidence was if they had to do an aircraft search, that would take more than the two hours of the normal shift. His evidence was that he was initially only provided with ear plugs again, and he gave the same evidence that he had a difficulty with the ear plugs, but after 12 months, he was given earmuffs. And there was evidence with respect to – in the same way as working as a boarding officer in the earlier period, there was periods where the planes were coming in with their engines on and other times within the two to five hours he was working on the tarmac but the engines on the plane that he was examining or searching wasn’t on. Having regard to that period of employment and assuming that history, do you think that that amounts to exposure for a very long – very prolonged duration to intense noise? --- No.
And again can you explain to the tribunal is that for the same reasons that you gave with respect to the first answer? --- ..... (sic) less exposed than in the initial period.”
In cross-examination Dr Mitchell confirmed that, in his examination of the applicant, he did not find any causes, other than occupational noise exposure, of the applicant’s hearing loss. However, he added:
“ But a lot of hearing loss is unknown. There’s a thing called presbycusis … genetically-related, age-related, unknown cause related, a tendency for your hearing to deteriorate as you get older.”
He agreed that, apart from presbycusis, he found no other non-occupational causes of the applicant’s hearing loss.
Dr Mitchell acknowledged that there were discrepancies in his assessments of the applicant’s hearing loss, as set out in his three reports, but he said that the assessment in his most recent report (dated 19 September 2012) was his preferred assessment, namely, an occupational noise-induced hearing loss of 14%.
Dr Mitchell opined that the noise of a jet engine would be about 120 decibels and he agreed that that was “significant noise … an intense noise”. He did not agree, however, that the duration of the applicant’s exposure to such noise was sufficiently prolonged to affect his hearing at frequencies below 2000 hertz. He confirmed that, in order for the applicant’s hearing at frequencies below 2000 hertz to have been affected, he would have to have been exposed to intense noise for 8 hours per day, 5 days per week for 2 years. His cross-examination continued:
“ MR NOLAN: So that – and it’s – then it’s, in your opinion it’s simply not possible for the hearing frequencies below 2000 hertz to be affected unless that was the case? --- That’s likely, yes.
It’s not possible? --- It’s possible, but unlikely. It’s possible.
So it is possible that he doesn’t have to be exposed to eight hours a day, five days a week, 52 weeks a year for a two year period. It is possible that his hearing can be affected below 2000 hertz?--- It’s unlikely.
Right. So you would – you would disagree, with you, if I were to say to you that Dr MacKendrick and Mr Harlock gave evidence that – that the amount of time we have been discussing with Mr Treen working and it being exposed to. You would disagree with their assessment that that was a prolonged exposure to a very intense noise? --- Yes.
And that’s based on the guideline that you’ve given us. That opinion is reached, based on that guideline?--- No, it’s named (sic) on the history given by Mr Treen.”
The Relevant Legislation
The SRC Act
Section 24 of the SRC Act provides:
“ 24 Compensation for injuries resulting in permanent impairment
(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.
…
27 Compensation for non-economic loss
(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.
…”
In s 4(1) of the SRC Act the phrase “approved Guide” is relevantly defined to mean:
“ the document, prepared by Comcare in accordance with section 28 under the title ‘Guide to the Assessment of the Degree of Permanent Impairment’, that has been approved by the Minister and is for the time being in force; …”
and the phrase “non-economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment” is defined to mean:
“ loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.”
The approved Guide
The approved Guide relevantly states (at p v):
“ …
4 Whole Person Impairment (WPI)
…
This Guide, like the first edition, is based on the concept of ‘whole person impairment’. Subsection 24(5) of the SRC Act provides for the determination of the degree of permanent impairment of the employee, that is, the employee as a whole person. The whole person impairment concept, therefore, provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person.
Whole person impairment is assessed under Division 1 of Parts 1 and 2 of this Guide.
…”
Chapter 7 of Division 1 of Part 1 of the approved Guide, which deals with ear, nose and throat disorders, relevantly states:
“ 7.1 Hearing Loss
Hearing defects are assessed in accordance with the current procedures from Australian Hearing. Once the binaural percentage loss of hearing has been calculated, it is then converted to a WPI rating. The calculation for converting the percentage loss of hearing to a WPI rating is:
(Percentage Loss of Hearing)
2”.
The Issue
It is common ground that:
·the injury, namely, “unspecified hearing loss (Bilateral)”, has resulted in “permanent impairment” of the applicant, within the meaning of s 24(1) of the SRC Act;
·the binaural hearing loss suffered by the applicant is more than 5%, for the purposes of s 24(7A) of the SRC Act;
·the respondent is liable to pay compensation to the applicant in respect of the injury under s 24(1) of the SRC Act;
·the additional compensation which the respondent is liable to pay to the applicant, pursuant to s 27 of the SRC Act, for “non-economic loss” suffered by the applicant as a result of the injury or impairment was correctly assessed by the respondent in its determination of 13 September 2011, as affirmed by the reviewable decision of 25 November 2011 (referred to in paragraphs 4–5 above).
Accordingly, the only matter in dispute, and the only matter for the Tribunal’s determination, is the applicant’s “binaural percentage loss of hearing” and his “WPI rating” under Chapter 7.1 of the approved Guide.
Analysis and Finding
Having regard to the expert medical evidence before the Tribunal, it seems to the Tribunal that, in order to assess the applicant’s “binaural percentage loss of hearing” within the meaning, and for the purposes, of Chapter 7.1 of the approved Guide, it must first determine whether or not frequencies below 2000 Hz are to be taken into account for the purpose of making that assessment.
There was a difference of opinion amongst the three expert witnesses in relation to that matter: Mr Harlock and Dr Mackendrick opined that frequencies below 2000 Hz should be taken into account in assessing the applicant’s occupational noise-induced binaural hearing loss, whereas Dr Mitchell opined that such frequencies should not be taken into account in making that assessment.
The Tribunal prefers the opinion of Mr Harlock and Dr Mackendrick to the opinion of Dr Mitchell for the following reasons.
Although all three expert witnesses agreed with the principle that “frequencies below 2 kHz are affected only after exposure for a very prolonged duration to intense noise”, as stated in the Guidelines (see paragraph 33 above), they differed as to whether the applicant’s history of occupational exposure to noise involved sufficient duration of exposure to intense noise to affect his hearing at frequencies below 2000 Hz. Mr Harlock and Dr Mackendrick opined that the applicant’s occupational exposure to intense noise had been of sufficient duration for that purpose, whereas Dr Mitchell opined that it had not been. The Tribunal notes that, at the hearing, the applicant’s evidence regarding his occupational exposure to noise (which the Tribunal accepts) was put to each of those expert witnesses, and each of them expressed his abovementioned opinion having regard to that evidence.
Dr Mitchell’s evidence to the effect that the duration of exposure to intense noise which is required before a person’s hearing at frequencies below 2000 Hz is affected is in the order of “eight hours a day … every day … probably for years” is greatly at odds with the evidence of Mr Harlock and Dr Mackendrick that the duration of the applicant’s most recent occupational exposure to intense noise, namely, about 2 hours per day, 4–5 days per week, for about 2½ years (September 2002–February 2005), was sufficient to affect his hearing at frequencies below 2000 Hz. The Tribunal accepts Dr Mackendrick’s evidence to the effect that the extent of hearing loss resulting from exposure to intense noise will vary amongst individuals – “Some people go deaf with much less exposure than others” (paragraph 24 above) – and, in the absence of any cause other than occupational noise exposure and presbycusis in the applicant’s case, it is very likely that the applicant’s hearing loss has resulted from his occupational exposure to noise. Dr Mitchell was likewise unable to point to any cause, other than occupational noise exposure and presbycusis, of the applicant’s hearing loss and, in the Tribunal’s opinion, his exclusion from consideration of frequencies below 2000Hz in assessing the applicant’s noise-induced hearing loss reflected an unduly strict interpretation and an excessively rigid application of the Guidelines in the applicant’s case. The Tribunal notes, however, that Dr Mitchell appeared to mitigate somewhat the evidence he gave in chief when, in cross-examination, he acknowledged that it was “possible, but unlikely” that the applicant’s hearing at frequencies below 2000 Hz would be affected if he were exposed to intense noise for less than 8 hours per day, 5 days per week for 2 years.
In the Tribunal’s opinion, having regard to the whole of the expert medical evidence before it, it is appropriate to include frequencies below 2000 Hz in assessing the applicant’s “binaural percentage loss of hearing” within the meaning, and for the purposes, of Chapter 7.1 of the approved Guide.
Each of the three expert witnesses made a calculation of the applicant’s binaural percentage loss of hearing, including frequencies below 2000 Hz. Their calculations, including an adjustment for presbycusis, were as follows:
·Mr Harlock 29.8% (as at 23 February 2010);
·Dr Mitchell 26.1% (as at 26 April 2012 – see para 3.4 of his report of 1 May 2012 set out in paragraph 30 above);
·Dr Mackendrick 38.5% (as at 7 August 2012).
The Tribunal notes that the audiogram of 23 February 2010 performed by Mr Harlock, and the audiogram of 7 August 2012 on which Dr Mackendrick based his report, are in evidence (part of Exhibit A3, and part of Exhibit A2, respectively), but the audiogram of 26 April 2012 performed by Dr Mitchell is not in evidence. The Tribunal notes that Dr Mitchell, in his report of 1 May 2012, also referred to an audiogram performed by an audiologist, Mr Sean Fitzpatrick, in November 2010. That audiogram is in evidence (T49, p 175). The Tribunal notes that, in para 3.3 of his report of 1 May 2012, Dr Mitchell referred to discrepancies between Mr Fitzpatrick’s audiogram and the audiogram performed by Mr Harlock in February 2010 which he attributed to “testing error”. The Tribunal attaches greater weight to the audiogram performed by Mr Harlock, an experienced ear, nose and throat surgeon, than it attaches to the audiogram performed by Mr Fitzpatrick.
The Tribunal accepts that each of the abovementioned binaural percentage loss of hearing calculations made on the basis of the relevant audiogram was accurate. Those calculations, however, were significantly different. The Tribunal, nevertheless, is required to make a finding as to the appropriate calculation of the applicant’s binaural percentage loss of hearing, having regard to the whole of the evidence before it.
The Tribunal notes that Dr Mitchell’s audiogram of 26 April 2012 resulted in a significantly lower calculation of the applicant’s binaural percentage loss of hearing than that which resulted from Mr Harlock’s audiogram of 23 February 2010. In the Tribunal’s opinion, however, it is likely, for the reasons explained by Dr Mackendrick (see paragraph 28 above), that the applicant’s hearing loss would have deteriorated in the period of 2 years and 2 months between the dates of those audiograms (see also Mr Harlock’s evidence in paragraph 20 above). That factor, together with the fact that the audiogram of 7 August 2012 (being the most recent audiogram which is in evidence) resulted in a significantly higher calculation of the applicant’s binaural percentage hearing loss by Dr Mackendrick than the calculations of both Mr Harlock and Dr Mitchell, cause the Tribunal to have reservations about the validity of Dr Mitchell’s audiogram and his calculation of the applicant’s binaural percentage hearing loss. Having regard to these considerations, the Tribunal regards Dr Mackendrick’s calculation of the applicant’s binaural percentage loss of hearing as representing the most accurate and reliable evidence before the Tribunal regarding the present extent of the applicant’s occupational noise-induced binaural hearing loss.
On the basis of Dr Mackendrick’s evidence (including his report of 7 August 2012), the Tribunal finds that the applicant’s “binaural percentage loss of hearing”, within the meaning, and for the purposes, of Chapter 7.1 of the approved Guide, is 38.5%. Accordingly, the Tribunal finds that the applicant’s “WPI rating” under Chapter 7.1 of the approved Guide is 19.25%.
Conclusion
In accordance with s 24(5) of the SRC Act, therefore, the Tribunal determines that the degree of permanent impairment of the applicant resulting from the injury, namely, “unspecified hearing loss (Bilateral)”, is 19.25%.
Decision
For the above reasons, the Tribunal varies the decision under review by determining that the respondent is liable to pay compensation to the applicant in respect of the injury, namely, "unspecified hearing loss (Bilateral)", under s 24(1) of the SRC Act, on the basis that the degree of permanent impairment of the applicant resulting from that injury, for the purposes of s 24(5) of the SRC Act, is 19.25%. In all other respects, the decision under review is affirmed.
I certify that the preceding 54 (fifty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ............[sgd D Brodie]...........................................
Administrative Assistant
Dated 18 January 2013
Dates of hearing
4, 5 December 2012
Representative of the Applicant
Mr A Nolan
Solicitors for the Applicant
Trewin, Norman & Co
Representative of the Respondent
Mr B Dube
Solicitors for the Respondent
Sparke Helmore
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