Searle v Qantas Airways Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Searle v Qantas Airways Limited [2023] NSWPIC 175
APPLICANT:	Jeffrey Searle
RESPONDENT:	Qantas Airways Limited
Member:	John Turner
DATE OF DECISION:	21 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60 claim for hearing aids; no dispute regarding noisy employment and last noisy employer; dispute in respect to whether hearing aids are reasonably necessary due to accepted injury; Rose v Health Commission (NSW), Diab v NRMA Ltd, Matthews v State Rail Authority of New South Wales, Murphy v Allity Management Services Pty Ltd and Kooragang Cement Pty Ltd v Bates discussed and applied; Held – work related injury materially contributed to the need for reasonably necessary hearing aids; award for the worker for medical expenses.
determinations made:	The Commission determines: 1. The supply and fitting of hearing aids to the applicant is reasonably necessary treatment as a result of the applicant’s accepted injury. The Commission orders: 2. The respondent is to pay for the provision of bilateral hearing aids for the applicant pursuant to s 60 of the Workers Compensation Act 1987 and the Workers Compensation (Hearing Aid Fees) Order 2023.

STATEMENT OF REASONS

BACKGROUND

Jeffrey Searle, the applicant, was employed by Qantas Airways Limited, the respondent, as a baggage handler from in or about 1992 until in or about 2013.
The applicant pleads that he sustained industrial deafness as a result of noise exposure in the course of his employment with the respondent relying on a deemed date of injury of 24 September 2010. On 24 September 2010 the respondent received a letter from the applicants then solicitors, Maurice Blackburn Lawyers, making a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for industrial deafness.
Whilst the documents in respect to the settlement of the applicant’s claim for permanent impairment compensation against the respondent are not in evidence in the current proceedings, there is no dispute that the applicant was compensated by the respondent for 3% whole person impairment (WPI) for occupationally induced hearing loss with the settlement occurring in or about October 2010.
The applicant claims pursuant to s 60 of the 1987 Act the cost of being supplied and fitted with binaural hearing aids.

ISSUES FOR DETERMINATION

In the conciliation arbitration conference the respondent advised that the only issue in dispute is whether pursuant to s 60 of the 1987 Act the claimed hearing aids are reasonably necessary treatment for the work related injury.
There is no dispute:
(a) that the respondent was the last noisy employer, and
(b) that the applicant suffered hearing loss as a result of noise exposure in the course of his employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 4 April 2023. Mr Edward McMahon, counsel, instructed by Ms Lyvia Troie, appeared for the applicant, who was present. Mr John Fennel, counsel, appeared for the respondent, instructed by Ms Summerton. The proceedings were conducted via TEAMS. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.
There was an objection by the respondent to the admission into evidence of the medico-legal report of Dr Stylis, ear nose and throat surgeon, dated 24 August 2010 which formed part of the attachments to the ARD. The respondent’s objection was that the applicant could only rely on one forensic medical report under clause 44 of the Workers Compensation Regulation 2016 (the Regulations). The respondent submitted that the report Dr Stylis did not fall within clause 44(4)(c) as the report related to the same claim and not another claim with the earlier claim simply being for a different head of compensation. The applicant submitted that the report was admissible due to the application of clause 44(4)(c).
The report was admitted on the basis that it was of historic relevance to the issues in dispute. The report of Dr Stylis was relied on by the applicant for the purposes of the previous claim for permanent impairment compensation and the settlement of the claim for permanent impairment compensation appears to have been based on the impairment assessment contained in the said report of Dr Stylis.
A brief summary of the evidence follows.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicants statement

The applicant has provided a statement dated 11 January 2023.
The applicant states that he has trouble understanding people when they are speaking from a distance, when they are not directly facing him, when in a group conversation or the presence of background noise. That his family complains that they have to repeat themselves because he does not hear them, that he is constantly asking his wife to repeat herself when she is talking to him. That he listens to the television at quite a loud volume in order to hear it. That he feels embarrassed to ask people to repeat themselves and often cannot properly engage in group conversations. Sometimes he does not feel like going out with his family or friends because he knows that he will not be able to hear, and he does not want to be constantly asking people to repeat themselves.
The applicant states that he constantly suffers from ringing in his ears which creates problems with his sleep and concentration.
The applicant states that in about 2010 he was compensated for industrial deafness in the amount of $4,000 in respect to 3% WPI and that he was offered hearing aids as part of this claim however he did not follow through with getting them.
The applicant states that in about 2013 he approached the respondent’s claims division with the view to obtaining hearing aids off his previous compensation claim. Qantas arranged for him to be assessed by an independent medical examiner (IME) however he could not attend the appointment and a second appointment was not organised.
The applicant states that if he was awarded hearing aids, he would wear them all the time. He states that when he was originally tested in 2010 he was hesitant about wearing hearing aids because they were “chunky”[1] and not the slim form ones currently available. He was a younger man and was embarrassed to wear hearing aids. When he revisited the possibility of hearing aids again in 2013 he had become more open to the idea of wearing hearing aids but was still hesitant to a degree. He was unable to make the appointment with the IME organised by the respondent as he had just started a new job and could not take time off. A second appointment was not organised and he did not follow up with the insurer for a second appointment.
[1] ARD p 4.
The worker states that he is now older and more aware of the slimmer types of hearing aids available. The applicant states that he believes that hearing aids will greatly improve his quality of life.

Pre-Employment Medical-Functional Assessment

The applicant when completing a SNP Security Pre-Employment Medical-Functional Assessment on 24 June 2014 ticked a box indicating that he had no hearing loss or ringing in his ears. A hearing test was performed as part of the pre-employment medical assessment.

Treating medical evidence

A percentage loss of hearing report for a test conducted on 30 July 2021 records a binaural hearing loss of 6.1%.

Dr Macarthur

Dr Peter Macarthur, ear nose and throat, head and neck surgeon, provided a medico-legal report for the applicant dated 4 April 2022. The doctor records that the applicant reported an approximately 30 year history of slowly increasing hearing loss, particularly in the presence of background noise. The doctor recorded that the applicant has a constant bilateral ringing tinnitus which the applicant finds “annoying”.[2] The doctor also recorded that the applicant suffers from occasional dizzy spells and loss of balance.
[2] ARD p 11.
Dr Macarthur records that audiological testing was conducted. In the doctor’s opinion the applicant’s pure tone audiogram displayed a pattern consistent with exposure to loud noise. In the doctor’s opinion the applicant is suffering from bilateral high tone sensori-neural deafness due to workplace exposure to noise.
Using the National Acoustic Laboratory Tables January 1988 Dr Macarthur assessed a 6.4% binaural hearing impairment (BHI). After subtracting the loss of hearing at 1500Hz which the doctor did not believe was related to noise exposure and subtracting 5.5% BHI for presbycusis and adding 2% BHI for severe tinnitus, the doctor assessed 2.5% BHI due to workplace noise exposure. The doctor converted the 2.5% BHI to 0% WPI.
The doctor observed that the applicant had previously been compensated for industrial deafness in 2010 for 3% WPI and then stated “….it is my opinion that on the basis of that decision, Mr Searle is now eligible for binaural hearing aids”.[3] In the following paragraph Dr Macarthur states that in his opinion “such hearing aids are essential, and he would be reasonably assisted by the aids as a reasonable form of medical treatment arising from the hearing loss he has suffered in the course of his employment”.[4]
[3] ARD p 12.
[4] ARD pp 12-13.

Dr Howison

Dr Ken Howison, ENT surgeon, provided a medico-legal report for the respondent dated 26 September 2022. Dr Howison records that the applicant reported that he has trouble understanding speech when there is background noise, and this causes him to feel socially isolated and loss of confidence. The applicant also has difficulty with the television and telephone and problems interacting with family and friends.
The applicant described to Dr Howison a cicada like tinnitus since the 1980’s. His tinnitus no longer affects his sleep however the tinnitus does affect his concentration every day. Dr Howison noted that the applicant had consulted his general practitioner for advice regarding his tinnitus.
Dr Howison concluded that the frequencies of 2000, 3000 and 4000Hz have been damaged by unacceptable noise levels and he used these frequencies to calculate the noise induced hearing loss. The doctor assessed a total hearing impairment of 10.8% BHI. After a deduction of 6.2% BHI for presbycusis and the addition of 2% BHI for severe tinnitus the doctor assessed a 6.6% BHI or 3% WPI.
Dr Howison assessed the occupational hearing impairment at 4.9% BHI. The doctor then deducted from the occupational hearing impairment 6.2% BHI for presbycusis before adding 2% BHI for severe tinnitus. The doctor calculated a total binaural occupational hearing impairment of 0.7% which he converted to 0% WPI.
Dr Howison assessed a non-occupational hearing impairment of 5.9% BHI which the doctor converted to 0% WPI. The doctor did not apply any deduction for presbycusis or loading for severe tinnitus to the calculation of the non-occupational hearing impairment.
Dr Howison is of the opinion that the applicant does not require hearing aids as a result of his noise induced hearing loss but requires hearing aids as a result of his presbycusis.

Dr Stylis

Dr Stylis, ear nose and throat surgeon, provided a medico-legal report for the applicant dated 24 August 2010. It appears that it was on the basis of this report that the applicant was compensated by the respondent in or about October 2010 for 3% WPI due to occupationally induced hearing loss.
Dr Stylis recorded that the applicant was aware of some hearing impairment which the applicant reported had been present for seven to eight years. The applicant reported to the doctor that his wife from time to time complained that he didn’t hear her, and that he has to turn the television up to hear it properly. The applicant complained of a constant buzzing in his ears, which is worse at night when it tended to interfere with his sleep. The buzzing forced him to get out of bed and watch television or read until he was tired enough to fall asleep. This happened at least twice a week. The noise made him nervous, and that he was taking tablets for his nerves every morning because sometimes the tinnitus “drives him crazy”.[5]
[5] ARD p 41.
Dr Stylis assessed a total hearing impairment of 8.6% BHI. The doctor assessed a non-occupational impairment of 3.8% BHI. Following correction (deduction) for presbycusis of 0.8% BHI and the addition of 2% BHI for tinnitus, the doctor assessed 6% BHI due to occupational noise exposure which the doctor converted to 3% WPI.
Whilst the applicant was aware of some hearing impairment, the doctor was uncertain as to whether the applicant would be compliant with the use of hearing aids. Whilst Dr Stylis found the hearing impairment to be “modest”[6] the doctor observed that hearing aids may well assist the applicant in coping with his tinnitus and therefore the doctor observed that the applicant may well wish to trial hearing aids to see if they are of benefit to him.
[6] ARD p 45.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Applicant submissions

It was submitted on behalf of the applicant that there is an agreed injury. The only real dispute is whether the need for hearing aids results from the noise induced hearing loss and that raises whether there is a material contribution from the noise induced hearing loss to the need for the hearing aids.
In the applicant’s submission the extent of the hearing loss is not conclusive of the issue as to whether the need for hearing aids results from a noise induced hearing loss.
It was submitted on behalf of the applicant that notice of injury was given on 24 September 2010 and at that time the applicant made a claim for lump sum compensation. He did not at that time make a claim for treatment expenses. At the time however it was noted that hearing aids may assist with the treatment of his tinnitus.
It was observed on behalf of the applicant that Dr Howison concluded that the applicant required hearing aids due to his presbycusis and not due to his occupational hearing loss. It was observed that Dr Howison is silent on the benefits of the hearing aids for the treatment of the applicant’s tinnitus.
It was submitted that Dr Howison’s opinion is expressed in terms of a single cause and appears to be directed to articulating a single cause. It was submitted on behalf of the applicant that the deduction made for presbycusis in accordance with the guidelines produced by the National Acoustics Laboratory occurs at a population level and is not necessarily a calculation of actual age-related hearing loss relevant to the applicant.
The applicant submitted that counter to the opinion of Dr Howison is the opinion of Dr Macarthur that hearing aids are essential, that the applicant would be reasonably assisted by hearing aids and that hearing aids are a reasonable form of medical treatment arising from the hearing loss suffered in the course of employment.
It was submitted that the applicant in his statement outlines the effect of the hearing loss and tinnitus on his life and relationships. The applicant explains his past embarrassment at the prospect of wearing hearing aids and his commitment to doing so now and although he forewent the opportunity of obtaining hearing aids in 2010 he did canvas the possibility again in 2013 though did not, apparently due to his embarrassment and associated reasons outlined in his statement, pursue the matter at that time.
It was submitted that the work-related component of the hearing loss materially contributes to the need for treatment in the form of hearing aids.
The applicant was unable to explain why Dr Howison applied the deduction for presbycusis and the loading for severe tinnitus only to the assessment of occupational noise induced hearing loss. However, submitted that there can be little doubt that the tinnitus arises as a result of noisy employment.
In respect to the report of Dr Macarthur the applicant submitted that Dr Macarthur’s opinion that the worker requires hearing aids is based on a combination of the previous 3% WPI assessment for which the applicant received permanent impairment compensation pursuant to s 66 of the 1987 Act and his own clinical assessment and opinion. The applicant submitted that it is plain that Dr Macarthur performed his own clinical assessment and concluded that hearing aids are now necessary.

Respondent submissions

In the respondent’s submission the work-related hearing loss does not materially contribute to the need for hearing aids, rather the primary and predominant basis for the need for hearing aids is presbycusis which is understood to be age related hearing degeneration.
The respondent referred to the pre-employment medical which the applicant completed on 24 June 2014 on which the applicant ticked a box indicating that he had no hearing loss or ringing in his ears. The respondent submitted that the answer on the pre-employment medical needs to be kept in mind when considering the progression of the applicant’s hearing over time. Whilst the applicant had been paid compensated for hearing impairment prior to the completion of the form the applicant was not complaining about it. The respondent submitted that just because there had been an injury and an agreement to pay compensation it does not follow that at that time the hearing loss was so severe that it required hearing aids. The respondent submitted that presbycusis is hearing loss due to the effluxion of time and as at June 2014 the hearing loss which was being experienced by the applicant was less than that which he is experiencing today and the respondent attributes that to presbycusis.
Dr Stylis assessed presbycusis of 0.8% BHI at which time the applicant was 60 years of age. Thirteen years has passed since the production of that report and the level of hearing loss has progressed so far as age related hearing loss is concerned.
It was submitted on behalf of the respondent that the height of the opinion of Dr Stylis is that the use of hearing aids may well assist the applicant in coping with tinnitus and he may wish to have a trial to see if they are of any benefit. In the respondent’s submission that is not an opinion which gets to the level of hearing aids being reasonably necessary as a result of the accepted work-related injury.
It was submitted that no weight should be placed on the opinion of Dr Macarthur that hearing aids are required for the work-related hearing loss because it is premised on a false assumption that the applicant is entitled to compensation having previously received compensation for 3% WPI.
The respondent was unable to advise as to why Dr Howison only applied the deduction for presbycusis and the loading for tinnitus to the assessment of the occupational hearing impairment but submitted that what can be drawn is that the applicant was assessed with an overall hearing impairment of 10.8% BHI. In terms of the occupational hearing impairment the total amount is 4.9% BHI from which the doctor subtracted 6.2% BHI for presbycusis and then added 2% BHI for tinnitus. The respondent submitted that this approach is consistent with the approach taken by Dr Macarthur.
It was submitted on behalf of the respondent that Dr Howison gives a clear opinion that the applicant requires hearing aids as a result of his presbycusis and not as a result of industrial deafness. That having regard to the progression of the applicant’s hearing impairment this is an available and correct conclusion. It doesn’t address whether or not employment related hearing loss materially contributed to the current need for hearing aids nor does Dr Macarthur except to say that the previous grant of permanent impairment compensation entitles him to the current claim for hearing aids. That the respondent submitted does not discharged the applicant’s onus to demonstrate that the proposed treatment is reasonably necessary as a result of an injury.

FINDINGS AND REASONS

The relevant law

Section 60(1) of the 1987 Act provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note—
Compensation for domestic assistance is provided for by section 60AA.”
Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) when considering s 10(1) of the Workers Compensation Act 1926 (the 1926 Act) said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”

Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] ….a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

Consideration and findings

The applicant pleads that he sustained industrial deafness as a result of noise exposure in the course of his employment with the respondent, relying on a deemed date of injury of 24 September 2010. There is no dispute that the respondent was the last noisy employer and that the applicant suffered hearing loss as a result of noise exposure in the course of his employment.
The applicant claims pursuant to s 60 of the 1987 Act the cost of being supplied and fitted with binaural hearing aids.
The only issue in dispute is whether pursuant to s 60, the claimed hearing aids are reasonably necessary treatment for the accepted work-related injury.
It is not disputed that the applicant has been previously compensated by the respondent for 3% WPI for occupationally induced hearing impairment with the settlement occurring in or about October 2010.
The evidence supports that hearing aids are reasonably necessary treatment for the applicant’s hearing impairment. The applicant in his statement details the significant impact which his hearing impairment has on his life. It is the applicant’s undisputed evidence that he constantly suffers from ringing in his ears which creates problems with his sleep and concentration. He has trouble understanding people when they are speaking from a distance, when they are not directly facing him, when in a group conversation or the presence of background noise. His family complains that they have to repeat themselves because he does not hear them, that he is constantly asking his wife to repeat herself when she is talking to him. That he listens to the television at quite a loud volume in order to hear it. That he feels embarrassed to ask people to repeat themselves and often cannot properly engage in group conversations. Sometimes he does not feel like going out with his family or friends because he knows that he will not be able to hear, and he does not want to be constantly asking people to repeat themselves.
Both Dr Howison and Macarthur are of the opinion that the applicant requires hearing aids for his hearing impairment. Hearing aids are a commonly accepted treatment for hearing loss and no alternative treatment has been suggested.
The next issue to consider is whether the hearing aids are “reasonably necessary”[7] treatment as a result of the accepted injury.
[7] Section 60 of the1987 Act.
The applicant only needs to establish that his work-related hearing impairment materially contributes to the need for the hearing aids[8]. It is not necessary for the work-related hearing impairment to be the only, or even the substantial cause of the need for the hearing aids.
[8] Murphy.
In summary it is the respondent’s submission that at the time of the settlement of the applicant’s claim for permanent impairment compensation in 2010 the applicant did not require hearing aids. That since 2010 the applicant’s hearing impairment has increased due to age related degeneration, presbycusis. That the presbycusis is the reason that the applicant now requires hearing aids, and that the work-related hearing loss does not materially contribute to the applicant’s current need for hearing aids. I do not accept the respondent’s submission.
The respondent referred to the SNP Security Pre-Employment Medical-Functional Assessment completed by the applicant on 24 June 2014 in respect to which the applicant ticked a box indicating that he had no hearing loss or ringing in his ears. The respondent submitted that the applicant’s response indicated that he was not complaining about any hearing impairment at that time regardless of the fact that the applicant had already received permanent impairment compensation.
The assessment in question was completed as part of an application for employment. The applicant’s response to the question is clearly incorrect as the applicant had previously been compensated for a hearing impairment which included an allowance for tinnitus. Dr Stylis who examined the applicant on 24 August 2010 records that the applicant reported a constant buzzing in his ears which he found upsetting, made him nervous (for which he was taking tablets each morning) and affected his sleep, that his wife from time to time complained that he didn’t hear her, that he had to turn the television up to hear it properly. Furthermore, the applicant states that in about 2013 he approached the respondent’s claims division with the view of obtaining hearing aids off his previous compensation claim. Qantas arranged for him to be assessed by an IME however he was unable to attend the appointment due to commencing a new job and a second appointment was not organised. It is also the applicant’s evidence that when he was originally tested in 2010 he was hesitant and embarrassed by the prospect of wearing hearing aids. By 2013 he had become more open to the idea of wearing hearing aids but was still hesitant to a degree.
The evidence supports that as at the time of the settlement of the claim for permanent impairment compensation in October 2010 the applicant’s quality of life was affected by his hearing impairment and it would seem most notably by his tinnitus. The evidence also supports that prior to completing the SNP Security Pre-Employment Medical-Functional Assessment on 24 June 2014 the applicant had considered being fitted with hearing aids but was hesitant due to embarrassment.
The respondent relies on the opinion of Dr Howison that the applicant requires hearing aids due to presbycusis and not due to hearing impairment caused by noise exposure in the workplace. I do not accept the opinion of Dr Howison.
In assessing the level of the applicant’s hearing impairment Drs Howison, Macarthur and Stylis have all made deductions for presbycusis. Presbycusis is expected age related hearing loss. In accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) any deduction for presbycusis is assessed using the Presbycusis Correction Table contained at Appendix 5 of the National Acoustic Laboratories Report No. 118 January 1988 ‘Improved procedure for determining percentage loss of hearing’ (NAL 1988). The Presbycusis Correction Table provides for a standard formulated deduction for expected age-related hearing loss based on age and sex once a threshold age has been reached. The deduction increases with age.
It needs to be remembered that the applicant’s claim is pursuant to s 60 of the 1987 Act for the costs of the provision and fitting of binaural hearing aids not for permanent impairment compensation. The applicant previously claimed and has been compensated pursuant to s 66 of the 1987 Act for 3% WPI.
Dr Howison and Dr Macarthur by recalculating the applicant’s hearing impairment at later points in time and applying the standard deduction for presbycusis pursuant to NAL 1988, which has increased as the applicant has aged, has had the effect of diminishing the already assessed accepted hearing impairment due to work related noise exposure. The standard presbycusis deduction has increased significantly as the applicant has aged from 0.8% BHI at the time of the assessment of Dr Stylis to 6.2% BHI at the time of the assessment of Dr Howison. However the assessed accepted work related noise impairment came prior to the increased presbycusis loadings applied by Dr Macarthur and Dr Howison. Given that the current claim is not for permanent impairment compensation but for the provision and fitting of hearing aids, the previous assessment of Dr Stylis and the settlement for permanent impairment compensation the application of the standard deduction for presbycusis under NAL 1988 as applied by Dr Macarthur and Dr Howison has no role to play.
The settlement of the applicant’s claim for permanent impairment compensation appears to have been based on the impairment assessment of Dr Stylis of 24 August 2010 who assessed 6% BHI before converting the loss to 3% WPI.
The assessments of the noise induced hearing loss prior to correction for presbycusis and the addition of the loading for tinnitus have remained within a relatively close range with Dr Stylis assessing 4.8% BHI, Dr Howison 4.9% BHI and Dr Macarthur 6% BHI.
In respect to the applicants total hearing impairment Dr Stylis assessed 8.6% BHI, Dr Macarthur 6.4% BHI and Dr Howison 10.8% BHI.
Dr Stylis, Dr Howison and Dr Macarthur have all applied a loading of 2% BHI for tinnitus to the applicants work-related hearing impairment.
The accepted work-related hearing impairment as assessed by Dr Stylis makes a significant contribution to the applicant’s current overall hearing impairment. On the basis of the 4% BHI assessment of Dr Stylis after correction for presbycusis and before adding the loading for tinnitus the contribution to the applicant’s overall hearing loss is approximately 37% on the assessment of Dr Howison and approximately 62.5% on the assessment of Dr Macarthur. The work-related contribution increases with the addition of the tinnitus loading.
Even if it were accepted that the applicant did not require hearing aids at the time of the settlement of the applicant’s claim for permanent impairment compensation in 2010, that does not automatically lead to the conclusion that the hearing aids are not reasonably necessary treatment for the work-related hearing impairment. Subsequent non-work related hearing impairment may increase the impairment to a point where hearing aids become reasonably necessary treatment. Potentially such an increase in impairment may be minor compared to the level of the preceding work-related impairment but be the straw that broke the camels back, so to speak, when it came to reaching the point that hearing aids become reasonably necessary. In such a situation the work-related injury would still have materially contributed to the need for the hearing aids even though the need arose at a later point in time.
In respect to the applicant’s tinnitus, as previously noted, Drs Stylis, Howison and Macarthur all applied a 2% BHI loading for tinnitus to their assessments of the work-related hearing impairment. As previously discussed at the time that the applicant was examined by Dr Stylis in August 2010 he reported the significant impact which the tinnitus was having on his quality of life. At that time Dr Stylis was of the opinion that hearing aids may well assist the applicant with coping with his tinnitus. It is the applicant’s evidence that he continues to suffer from tinnitus and that it continues to negatively impact on his sleep and concentration. Neither Dr Macarthur or Dr Howison consider or comment directly on whether hearing aids would assist the applicant with his tinnitus. I accept the opinion of Dr Stylis that hearing aids may assist the applicant to cope with his tinnitus.
Whilst the applicant was previously hesitant to wear hearing aids he now believes that hearing aids would greatly improve the quality of his life and it is his evidence that he would wear them all the time.
I am satisfied for the above reasons that the applicant’s accepted injury, being work related hearing impairment materially contributes to the applicant’s need to be supplied and fitted with hearing aids.
For the above reasons and applying the commonsense test of causation[9] I find that the supply and fitting of hearing aids to the applicant is reasonably necessary treatment as a result of the applicants accepted work related injury.
[9] Kooragang Cement Pty Ltd Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.

SUMMARY

There is no dispute that the respondent was the last noisy employer and that the applicant suffered hearing loss as a result of noise exposure in the course of his employment. The only issue in dispute is whether pursuant to s 60 of the 1987 Act the claimed hearing aids are reasonably necessary treatment.
I find that:
(a) the supply and fitting of hearing aids to the applicant is reasonably necessary treatment as a result of the applicants accepted injury.

[2023] NSWPIC 175

21 April 2023