Rowe and Comcare - [2002] AATA 266

DECISION AND REASONS FOR DECISION [2002] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/158 and S2001/17

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOHN FREDERICK ROWE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member WJF Purcell Dr JTB Linn (Member)

Date18 April 2002
PlaceAdelaide

Decision      The Tribunal sets aside the first decision, of 9 March 2000, and substitutes a decision that since 1 November 1997 the applicant has continued to be partially incapacitated for work and is entitled to ongoing payments of compensation in respect of that partial incapacity; and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant. The Tribunal sets aside the second decision, of 15 November 2000, insofar as it determined that compensation of $4,244.49 was payable, pursuant to section 27 of the Safety Rehabilitation and Compensation Act 1988; and that no compensation was payable to the applicant for the conditions of "tinnitus" and "disequilibrium"; and substitutes a decision that compensation is payable to the applicant, pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, for permanent impairment in respect of hearing loss and tinnitus assessed at 15% combined value.    The Tribunal orders that the respondent pay the applicant's costs of these proceedings, as agreed between the parties or in default of agreement, as taxed by a Registrar of the Tribunal.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
COMPENSATION - liability for compensation - whether exposure to noise has caused hearing loss, vertigo, tinnitus and headaches - reduced capacity for work - whether applicant has made reasonable attempts to obtain alternative employment - whether entitled to income maintenance
Compensation (Commonwealth Government Employees) Act 1971 section 39
Safety Rehabilitation and Compensation Act 1988 sections 24, 27

REASONS FOR DECISION

18 April 2002 Senior Member WJF Purcell Dr JTB Linn (Member)

These are applications for review of two decisions of the respondent (Comcare). The first decision of 9 March 2000, affirmed a determination of 2 June 1999 to deny liability to award incapacity payments on and from 1 November 1997, in respect of "noise induced hearing loss" deemed to have been sustained on 20 June 1980. The second decision of 15 November 2000, set aside a determination of 17 April 2000, that the date of injury for the condition was 27 September 1987; that the applicant's claim was to be dealt with under the Australian National Railways Act 1917 (the Modified Act) and that the compensation payable was $7,500.00. The Independent Review Officer revoked the determination and decided that the Modified Act did not apply; that the claim was to be dealt with under the Compensation (Commonwealth Government Employees)Act 1971 (the 1971 Act) or the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act); that the date of injury was 20 June 1980, and that the compensation payable, pursuant to section 39 of the 1971 Act in respect of an 8.2% loss of hearing, was $1,607.20 and that compensation of $4,244.49 was payable, pursuant to section 27 of the 1988 Act, a total of $5,851.69. The Independent Review Officer determined also that no compensation was payable to the applicant for the conditions of "tinnitus" and "disequilibrium".
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act, 1975 (the T Documents) together with exhibits tendered by the parties. Mr Cole of counsel appeared for the applicant, who gave oral evidence, and called Dr N Minnis, Ear, Nose and Throat Surgeon, and Dr C Mills, Occupational Physician. Comcare was represented by Mr Apps of counsel, who called Dr J Tomich, Otorhinolaryngologist, and Dr G Long, Occupational Physician.
The applicant, who is aged 56 years, commenced work with the South Australian Railways Commission on 1 June 1967. He had no hearing or ear problems. He was employed subsequently by the Australian National Railways (ANR) as a station assistant from 10 May 1987 until 31 October 1997, when his employment was terminated by compulsory redundancy.
The applicant worked initially as a stower, at the Adelaide Railway Station. His various duties included driving a tow motor, a forklift, loading foot warmers, loading brake vans and railway carriages, and generally driving and managing machinery. He gave evidence that there were 13 platforms, which were often all occupied by trains with their diesel motors running. At 3 or 4 platforms there would often be Bluebird brake vans, which he said, were particularly noisy. In the mid 1960's he was transferred to the Keswick Terminal, and on 20 June 1980 the applicant was performing his ordinary work in a Bluebird van, with engine and compressors operating, when all of a sudden he experienced a high pitched screaming noise in both ears. He described it in evidence as though someone had thrust a knife into both ears. He became quite dizzy and had to sit down. He reported the matter to the stationmaster; and was referred then, for hearing tests. The tinnitus persisted and the applicant was told there was no treatment or operation that could cure the condition. He says that he grew to live with it, and transferred to Islington for about 2 years, as he thought the environment might be quieter.
The applicant gave evidence that at Islington the work involved loading flat metal top railway trucks. Steel plates would be put into position between adjoining flat tops to create, in effect, a long flat road surface along which the vehicles to be transported could be driven. The vehicles would then be chained in position. The process with the plates was that each flat top had a plate at each end. When loading was finished the plate would be put into a vertical position, and bolted into place. It would travel with the flat top. When the shunters brought in a load of empty flat tops, the applicant's task was to move along the line of the flat tops, remove the bolts holding the plates, and then drop the metal plates. This created a loud banging noise, and was done routinely. He continued with this task for some 12 months whilst suffering from headaches, dizziness and the high pitched scream in his ears, associated with nausea. Subsequently, the applicant returned to Keswick and continued with similar work in a noisy environment.
0n 3 July 1980 the applicant claimed compensation for "ear trouble" as a result of "stowing trains" on 20 June 1980, and Comcare accepted liability. The applicant submitted a further claim on 11 May 1987 in respect of "injury to ears causing loss of balance, dizziness, headaches" which he stated became apparent in 1980, and re-appeared on 20 April 1987. On 7 July 1987 Comcare accepted liability in respect of "aggravation of inner ear damage to both ears" sustained on 6 April 1987, and Comcare accepted liability also in respect of "noise induced hearing loss" sustained on 20 June 1980. On 20 July 1987 the applicant gave notice of a claim for further compensation for permanent damage to his ears.
In early 1998, in the course of investigation by Dr Minnis, of the level of the applicant's hearing loss, a CAT scan of his head showed a large mass covering his left parietal lobe. He was admitted to the Royal Adelaide Hospital, and the growth, which proved to be benign, was removed. He now has two titanium plates in his head replacing that part of the skull. It is not asserted that this growth added to the applicant's hearing loss, the screeching in his ears or to his balance problems. On 11 September 1998, he gave notice to Comcare of a claim for permanent impairment in respect of noise induced hearing loss, tinnitus and vertigo.
The applicant contends that he has been partially incapacitated for work since 31 October 1997, when he was made compulsorily redundant. He contends further, that he has continued to seek suitable work during that period, save and except the period when he was ill and unable to work as a result of the removal of the growth. He has continued thereafter, and still seeks suitable work. He maintains his capacity to sell his labour in the open labour market has been reduced by reason of his noise induced hearing loss and tinnitus. The applicant contends that he is entitled to weekly payments of income maintenance from Comcare in relation to his partial incapacity for work, in accordance with the provisions of the 1988 Act, and that he suffers a permanent impairment in excess of 10% as required by the Act to entitle him to compensation, by way of permanent impairment, not only for his noise induced hearing loss, but also for his tinnitus.
The applicant argues also, that as at 1 December 1998 (when the 1988 Act came into effect), he had permanent hearing loss and tinnitus, which as a result of the continued exposure to noise in the course of his employment, continued to deteriorate, and that such deterioration of the permanent hearing loss and increase in tinnitus subsequent to December 1988 is "new" tinnitus. The tinnitus and the hearing loss preclude the applicant from engaging in certain employment. There is a work-caused hearing loss now in the range of 23% to 29.9%. In February 1988 the hearing loss was assessed by Dr Minnis at 8.2%. There is no evidence of a deterioration between February 1988 and December 1988. If the Tribunal were to accept the current hearing loss at say, 28.2%, and subtract the 1988 hearing loss of 8.2%, the whole of person hearing loss since 1988 would be half of 20%, or 10% and the applicant would be entitled to compensation. Alternatively, the applicant argues the 1988 assessment was a hearing loss assessment, not a whole of person impairment. "Whole of person" impairment was introduced by the 1988 Act. In the circumstances of this matter, with the uncertainties of the original assessment, and the evidence of the two medical specialists as to the ranges available, it is open to the Tribunal to take a broad approach, that these matters are not amenable to scientific precision, that it is so close to 10%, and that 10% is a fair outcome. To this assessment would be added the tinnitus impairment.
Comcare submits that the applicant has a clear capacity for work, and the best evidence of that capacity is that between 1987 and his redundancy in 1997, he worked longish hours over extended periods, performing the same duties. He was never on alternative or modified duties, he was at all times on normal duties without incident or injury. In addition, none of the jobs that he occupied after he left work in 1997 - driving a tractor, working at the Golden Grove Recreation Centre, being a cleaner, and finally working for Osborne Lawns - was terminated because of his hearing impairment. With appropriately fitted hearing aids he could continue his pre-redundancy occupation.
In relation to the question of permanent impairment, Comcare submits that the applicant's claims for compensation made in 1980 and in 1987, were properly dealt with pursuant to the provisions of the 1971 Act. The percentage of hearing loss suffered by the applicant as at 20 June 1980, was 8.2%, and the applicant's entitlement to compensation for permanent injury in respect of his hearing loss, as at 20 June 1980, pursuant to section 39 of the 1971 Act, was $1,607.20.
Comcare contends that at 1 December 1988 there had been no, or no significant, increase in the applicant's permanent loss of hearing, which would give rise to any further entitlement to compensation for permanent injury, pursuant to section 39 of the 1971 Act. Subsequent to 1 December 1988, the applicant has suffered an increase in the level of his hearing loss arising out of, or in the course of his employment. The extent of that increase is 16.8% which is equivalent to an 8.4% whole person impairment, pursuant to Table 7.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment issued pursuant to section 28 of the 1988 Act (the Comcare Guide). Because the level of whole person permanent impairment by way of increase in hearing loss suffered by the applicant subsequent to 1 December 1998, is less than 10%, the applicant has no entitlement to compensation pursuant to section 24 of the 1988 Act.
Comcare contends also that the tinnitus condition became permanent prior to 1 December 1988, that no compensation for permanent injury was payable in respect of tinnitus, pursuant to the 1971 Act, and consequently the applicant is not entitled to compensation pursuant to the 1988 Act. The applicant's disequilibrium, it maintains, is not compensable because the condition did not arise out of, or in the course of his employment. Comcare maintains that the applicant is entitled to non-economic loss pursuant to section 27 of the 1988 Act calculated on the basis of a 4.1% whole person impairment. The amount of that entitlement is $1,115.00.
The applicant gave lengthy evidence as to the symptoms of hearing loss tinnitus, blurred vision, dizziness and nausea he continues to suffer, and their effects on his lifestyle. He gave evidence also of the employment he has undertaken since he left ANR. He says that his tinnitus has got worse since 1988; it is at a constant level, and that anywhere he goes noise triggers the tinnitus, which in turn produces the blurred vision and nausea.
The applicant impressed us as a down to earth and credible witness, who did his best to outline the history of the matter, and his symptoms, without embellishment or exaggeration.
Dr Minnis, Ear, Nose and Throat Surgeon, has seen the applicant on numerous occasions since 1980, as his treating specialist, and has provided 7 written reports, the last being dated 18 October 2000. In his first report of 2 September 1980 he stated that the applicant gave a history that he suffered a sudden attack of tinnitus in both ears, whilst loading a train in which the diesel motor was idling. He found the noise extremely uncomfortable, as did several other members of the staff working with him. The applicant complained that the whistling high-pitched tinnitus has persisted from that day until the present, and initially was accompanied by giddiness, which resolved after about 10 minutes. The applicant was not aware of any deafness at the time. Dr Minnis concluded that the applicant had sustained some inner ear damage at work. There had already been damage in his previous employment in railway work and the sudden excessive noise tipped the scales as far as auditory reserve was concerned, and caused further damage. The situation will remain static unless there is further excessive noise. Dr Minnis concluded that the effects would be permanent, and that the applicant had suffered bilateral hearing loss of 8.2%. He said that it was impossible to assess the applicant's tinnitus.
Dr Minnis gave evidence that tinnitus runs with hearing loss, in that the greater the hearing loss, the greater the tinnitus. Noise induced hearing loss affects or exacerbates limitations. Tinnitus can also be related to stress level and to some foods. The applicant's hearing loss has increased measurably, and he estimates the hearing loss handicap as 25%, with tinnitus an additional 2%. In his report of 24 August 1998, he had noted the difference in the applicant's hearing handicap:
1980     1998
Hearing  8.1%  25%
Whole person impairment             4.05  8.45

In relation to the difference in assessment of the applicant's hearing loss between himself and Dr Tomich, Dr Minnis said that although the tests are conducted with some precision, a differential of 2% is "neither here nor there". He said also, that he considers now, that he probably underestimated the applicant's tinnitus.
Dr Minnis said in evidence that as to the brain lesion found by his investigation of the applicant's symptoms; it was a benign tumour, completely removed, and had no impact on the applicant's hearing or tinnitus. In regard to the vertigo and disequilibrium, he does not feel that they are work-related. He said that blurred vision can be linked with disturbance in inner ear function. Hearing loss as such, does not cause blurred vision. In his report of 18 October 2000 [T50/92], Dr Minnis stated that he believed that the applicant is "severely handicapped as far as selling his particular skills on the open market". Hearing loss and tinnitus puts him, along with other workers, at risk. In his evidence he stated that the applicant was a very genuine person. He feels that the applicant would have little or no chance of being employed on the open market with the skills he has at the present moment.
Dr Tomich, Otorhinolaryngologist, first examined the applicant on 19 June 1987, for the purpose of preparation of a report to ANR. He reported on 1 July 1987 that he was of the opinion that the "high tone neurosensory hearing loss is of noise induced etiology … consistent with the industrial noise exposure to which this patient has been exposed over the past 22 years whilst employed with Australian National. The cause of the tinnitus is not clear". He reported again on 11 February 1998 [T28/56] that in his view the applicant's tinnitus was probably of noise induced etiology as a result of his previous industrial noise exposure. He said in evidence that he assessed the applicant 's impairment at 5%, now.
Dr Tomich assessed the applicant again, on 28 July 2000, and reported on 5 September 2000, that he noted "bilateral non sleep distressing tinnitus" and "optokinetic induced dysequilibrium which appears to be exacerbated in a loud noisy environment causing some imbalance and has troubled him now for several years" [T49/87]. He assessed the applicant's hearing loss at 27.9%, and stated, as he did in his evidence also, that the 2.9% discrepancy between his and the assessment done by Dr Minnis indicated that the applicant is "a genuine witness".
Dr Tomich said in evidence that in regard to the question of whether increased hearing loss in turn increased tinnitus, this he said is possible, but is not universally accepted. The person's perception of tinnitus is greater however. He again stated that there was no uncertainty in regard to the applicant's reliability. He said in evidence that he agrees with Dr Minnis that the applicant's disequilibrium and vertigo are not work related.
Dr Mills, Occupational Physician, assessed the applicant at the request of his solicitors, on one occasion, on 5 November 2000. He had reports from Drs Minnis, Tomich and Tan. In his report of 6 December 2000 [T53/110], Dr Mills expressed the opinion that the applicant has, as result of his employment, tinnitus – a high pitched scream, episodic disequilibrium, hearing loss, difficulty with communication and is restricted from driving, working near machinery, working with people where verbal communication is necessary, and working on scaffolds, ladders or above ground. He has difficulty hearing conversations against background noise and needs to lip read.
Dr Mills said in evidence that all the applicant's problems individually affected his ability to work, and that taken all together his performance is greatly affected. He said that he would prefer the opinion of the specialists that vertigo may not be related to work, but in his view, it is involved. In regard to dizziness, Dr Mills said that increased noise led to increased tinnitus and to increased dizziness, where protection at work would be needed. In regard to restrictions he said that the applicant's hearing loss and tinnitus prevent employment or limit his abilities in certain areas such as crowd control, eg where radio communication is required, where levels of concentration are needed, and the applicant needs to respond to oral commands from behind, ie when the speaker is not in his range of sight.

Dr Mills concluded that the applicant is a most unattractive prospect for a potential employer, medically unsuited for the work he is qualified for by education or experience. His condition is permanent, and unless and until there is a considerable investment in time, education and money, his employment prospects will remain severely compromised.
Comcare referred the applicant to Dr Long, Occupational Physician. He reported on 27 November 2000 that the applicant had significant permanent disability as a result of his hearing loss and tinnitus, and that in fact, there was potential for further deterioration in his hearing with age, or further excessive noise exposure. Dr Long stated also, that suitable employment for the purposes of the 1988 Act, included regard to age, experience, training, language and other skills as well as suitability for rehabilitation and vocational retraining. He stated that he believed that the applicant's employment opportunities within the Commonwealth Public Sector would now be extremely limited given the devolution of many previously available unskilled positions and given his age, limited employment experience (railway worker for 30 years) and his reported difficulties with schooling. Dr Long reiterated these views in the course of his oral evidence.
All of the medical witnesses were suitably qualified and gave helpful and objective evidence. Drs Minnis and Tomich are both well known practitioners in the field; and we found their evidence to be credible and duly objective; and they put beyond doubt any question of the applicant's genuineness. With the view we take of each of them, it is difficult, to the point of being impossible, to separate them on the ground of credibility, as each is entitled to the highest degree of credit. That being so, it seems to us that the collective effect of their evidence should be considered. Both the medical specialists found the applicant genuine; and although they do not quite agree as to the level of impairment from hearing loss and tinnitus, the collective effect of their evidence is that the applicant's impairment from hearing loss has increased approximately 10%; and that his impairment from tinnitus is 5%.
We accept the applicant's evidence that the symptoms of tinnitus have changed since 1988; and that he has tinnitus now, constantly. We accept his submission that this is "new" tinnitus and compensable therefore, under the 1988 Act in accordance with the Comcare Guide, introduced pursuant to that legislation. In accordance with Table 14.1 of the Comcare Guide, the combined value of the applicant's impairments for hearing loss and tinnitus is 15%. We are satisfied on the evidence that this is the appropriate value.
As to the question of the applicant's continuing ability to work, we are satisfied, on the whole of the evidence, that the applicant's hearing loss and tinnitus preclude him from working in certain occupations, and limit his ability to sell his labour on the open market. We are satisfied on the evidence, and find as a fact, that as and from 1 November 1997, the applicant has a partial incapacity for work, and is entitled to incapacity payments on that basis.
For these reasons the Tribunal sets aside the first decision, of 9 March 2000, and substitutes a decision that since 1 November 1997 the applicant has continued to be partially incapacitated for work, and is entitled to ongoing payments of compensation in respect of that partial incapacity; and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant.
The Tribunal sets aside the second decision, of 15 November 2000, insofar as it determined that compensation of $4,244.49 was payable, pursuant to section 27 of the 1988 Act; and that no compensation was payable to the applicant for the conditions of "tinnitus" and "disequilibrium"; and substitutes a decision that compensation is payable to the applicant, pursuant to sections 24 and 27 of the 1988 Act, for permanent impairment in respect of hearing loss and tinnitus assessed at 15% combined value.   The respondent will pay the applicant's costs of these proceedings, as agreed between the parties or in default of agreement, as taxed by a Registrar of the Tribunal.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr JTB Linn (Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  30 & 31 July 2001, 1 August 2001
Date of Decision  18 April 2002
Counsel for the Applicant        Mr S Cole
Solicitor for the Applicant         Johnston Withers
Counsel for the Respondent    Mr S Apps
Solicitor for the Respondent    Sparke Helmore