Stephen Aldenton and Military Rehabilitation and Compensation Commission

[2014] AATA 906

[2014] AATA 906  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0056
Re	Stephen Aldenton
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	8 December 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

COMPENSATION – Hearing loss – Whether further loss of hearing casually related to military service – Service caused hearing loss does not contribute materially to need for hearing aid – Decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 43B
Compensation (Commonwealth Government Employees) Act 1971 (Cth) (Repealed), s 39
Military Rehabilitation and Compensation Act 2004 (Cth), s 280A

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 27, 144B

CASES

Canberra Raiders Sports Club and Commissioner for the Act Revenue (1999) 59 ALD 229

Re Tomo Bozicevic, Sam Cauci and Pero Jukic and Comcare [1996] AATA 195

SECONDARY MATERIALS

Department of Health, Australian Government, “Am I eligible to receive free hearing services?” – Hearing Services Program
Department of Veterans’ Affairs, Australian Government, “Factsheet HSV22 – Hearing Services”

MRCA (Military Rehabilitation and Compensation Act) Treatment Principles (Instrument 2013 No. MRCC 53)

REASONS FOR DECISION

Dr M Denovan, Member

8 December 2014

INTRODUCTION

1. Mr Aldenton (“the applicant”) made a claim for provision, and funding request for the top up price, of a hearing aid dated 20 March 2014.[1] A decision was made

   
   

   10 October 2013 disallowing the request for financial assistance for the provision of a hearing aid. This decision was made on the grounds that the applicant’s hearing loss previously determined as service related does not effectively contribute to the need for a hearing aid. The applicant applied for review of that decision to this Tribunal on

   
   

   2 January 2014.

   [1] Exhibit 4.

   BACKGROUND

2. The applicant has significant hearing loss in his left ear. He was enlisted in the

   
   

   Army Reserves from 1967 to 1994, and in a decision dated 18 February 1994 liability was accepted for the effects of noise exposure. At the time the accepted hearing loss in the left ear was 2.48 per cent.

3. In August 2013 he applied for the top up cost of a hearing aid. The hearing loss in his left ear was determined to be 40.5 per cent after age correction. Mr Aldenton argues that as the hearing in his right ear is normal, the deterioration of his hearing in the left ear must be due to deterioration from the original injury that occurred during his military service. He further argues that the respondent has previously increased the percentage of accepted hearing loss, even when that increase occurred after his discharge.

4. The respondent denied the claim, on the basis that there is no evidence that the further losses of hearing after Mr Aldenton left the military service are causally related to that service. The respondent also contends that a hearing aid is not necessary for the amount of Mr Aldenton’s accepted hearing loss.

5. Mr Aldenton was not required to pay the full cost of his hearing aid, because he has a hearing services voucher. The respondent contends that as a result of changes in the legislation in 2013, even if liability for worsening of his condition was accepted,

   
   

   Mr Aldenton has already received the maximum contribution towards the cost of his hearing aid. The respondent requests I dismiss the application pursuant to s 43B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), on the grounds that the application is frivolous.

6. I must decide whether the respondent is liable to pay for the top up cost of Mr Aldenton’s hearing aid, pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRCA”).

   CONSIDERATION

   Should this application be dismissed pursuant to s 43B of the AAT Act?

7. Ms Kidson, for the respondent, contends that even if the applicant’s claim for treatment of his hearing loss was to be accepted by the AAT, the case is frivolous as Mr Aldenton has already received the maximum treatment he would be entitled to. Ms Kidson referred me to the matter of Canberra Raiders Sports Club and Commissioner for the Act Revenue (1999) 59 ALD 229, which she contended was persuasive for the dismissal of matters by the Administrative Appeals Tribunal in similar circumstances.

8. Pursuant to s 43(6) of the AAT Act, a decision of the Tribunal in substitution of a decision is deemed to have effect on and from the day which the decision under review has or had effect. Had the decision under review, dated 10 December 2013 been set aside, the date of effect of this Tribunal decision would have been the 10 October 2013, being the date of the original decision of the respondent that denied Mr Aldenton’s claim.

9. Pursuant to s 144B(1)(c)(i) of the SRCA, if between 1 January 2012 and

   
   

   9 December 2013 the Military Rehabilitation and Compensation Commission

   
   

   (“the MRCC”) is liable to pay compensation under s 16(1) of SRCA in respect to the cost of medical treatment obtained in relation to the SCRA injury, then the treatment provision is pursuant to the Military Rehabilitation and Compensation Act  2004 (Cth) (“the MRCA”).

10. If the applicant’s claim were to be accepted, he would be eligible to be provided with treatment under s 280A of the MRCA and therefore not entitled to compensation under

    
    

    s 16 of the SRCA.[2] The effect is that he might be entitled to treatment of an injury or disease, but no longer entitled to receive compensation for medical expenses under the SRCA.

    [2] Section 280A of the MRCA provides that the applicant is to be provided with treatment under Part 3 of Chapter 6 of the MRCA. The arrangements of treatment are governed by determinations under s 286 in Part 3, Chapter 6 of the MRCA.

11. The mechanism by which the applicant would be entitled to compensation for treatment relating to hearing loss is by referral to the Australian Government Hearing Services Program run by the Office of Hearing Services (“OHS”) for assessment of hearing loss and evaluation of the clinical requirement of a hearing aid. Those who are found to potentially benefit from a hearing device are offered a hearing aid, free of charge. If the applicant decides to select a hearing aid with additional features that are considered extra to those necessary for the hearing loss, they will be required to make a top up payment. The MRCA does not contribute to the top up cost of hearing aids.

12. At the time Mr Aldenton purchased his hearing aid, he was in receipt of the age pension. He was issued a voucher which entitled him to the same benefits as those holders of a White Card (the Repatriation Health Card – For Specific Conditions).[3] As a result he was entitled to a hearing aid, free of charge, or payment towards a more advanced hearing aid. Mr Aldenton selected the latter option, and was required to pay a top up payment. Even if Mr Aldenton’s claim for treatment for his hearing loss in the left ear was accepted, he would not be entitled to further treatment or financial assistance other than that which he has already received. He would not have been entitled to any further compensation, or contribution toward the cost of the hearing aid.

    [3] Mr Aldenton is now in possession of a White Card (the Repatriation Health Card – For Specific Conditions).

13. At the hearing, Mr Aldenton indicated that he now understands he is not entitled to any more lump sum from the respondent, and is not able to claim the cost of the top up payment for his hearing aid. He said that the issue of the percentage of accepted hearing loss is now what concerns him. On that basis, I find that the claim is not frivolous, for the reason that by reviewing the decision the question of whether liability for Mr Aldenton’s hearing loss in his left ear should be altered to reflect his current loss of 40.5 per cent[4] is answered. To dismiss the application would deny Mr Aldenton the benefit of review of that issue by this Tribunal on that issue.

    Is Mr Aldenton entitled to payment for a hearing aid to treat his accepted hearing loss in his left ear?

    [4] Exhibit 1, T17, page 43.

14. When Mr Aldenton first made a claim for hearing loss in his left ear, the most recent audiogram showed a 2.6 per cent loss. Liability of 2.48 per cent loss in the left ear was accepted. As his hearing loss was less than 20 per cent, he was not entitled to a lump sum compensation payment under the then current SRCA legislation. Due to the period of the applicant’s service, his entitlement was assessed under the provisions of s 39 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (Repealed), which was in force until 30 November 1988. The percentage of loss of hearing as at

    
    

    30 November 1988 was determined to be 2.48 per cent, and the applicant was paid a lump sum payment of $1041.25.

15. Mr Aldenton lodged a further claim for compensation for loss of hearing in his left ear in August 1997.[5] In December 1997 the accepted condition was amended to sensorineural hearing loss with tinnitus, with the date of effect 3 August 1992 (the date the existing of a hearing loss was first recorded). Mr Aldenton was awarded a further lump sum of $3,527.19, in March 1998,[6] for non-economic loss/lifestyle loss.[7]

    [5] Exhibit 1, T8, page 20.

    [6] Exhibit 1, T11, page 27.

    [7] As a result of the Federal Court’s decision in Re Tomo Bozicevic, Sam Cauci and Pero Jukic and Comcare [1996] AATA 195 payments under s 27 of the SRCA were allowed in cases where a payment had been made under s 24 of the SRCA.

16. The audiology report in December 1997 attributed 2.8 per cent loss of hearing in the left ear to be due to Commonwealth employment;[8] however I can find no decision of the respondent which increased the percentage of accepted loss in the left ear. I note in the respondent’s original decision in this matter, dated 10 October 2013, the accepted hearing loss I the left ear was referred to as being 2.48 per cent.

    [8] Exhibit 1, T9, page 23.

17. Mr Aldenton had his hearing re-assessed in September 2013.[9] He was noted to have moderate to severe sensorineural hearing loss in his left ear (40.5 per cent loss after age correction[10]), and mild high frequency hearing loss in his right ear. A hearing aid for the left ear was recommended and two devises were recommended as suitable. A request for OHS top up price was sent to the respondent from Neurosensory (a Queensland registered Hearing Aid and Audiological Service provider).

    [9] Exhibit 1, T12, page 29.

    [10] Exhibit 1, T17, page 43.

18. The Respondent relied upon the reports of Otolaryngology Specialist and Clinical Professor, Dr Bruce Black. Professor Black provided two reports dated 11 October 1996 and 22 November 1996 respectively.[11] Professor Black stated that when a member of the military service has demonstrable hearing losses at discharge, these levels should be used to determine any future liability on the part of military services. Professor Black opined that further losses after the individual leaves the military service are not applicable to military service.[12] Professor Black explained that further hearing loss can be due to age, or exposure to ototoxic drugs or to a range of systemic diseases such as microvascular disease.[13]

    [11] Exhibit 2.

    [12] Exhibit 2, page 52.

    [13] Exhibit 2, page 51.

19. Mr Aldenton wrote to Professor Black, asking him to comment on the likelihood of an association with military service and the worsening of his left ear hearing, given his right ear was functionally normal. Professor Black declined to give an opinion without examining Mr Aldenton.[14]

    [14] Exhibit 5.

20. The respondent requested a comment from a specialist working from Neurosensory, as to whether the worsening of Mr Aldenton’s hearing loss in the left ear could be service related. The respondent also requested an opinion as to the need for a hearing device to treat the amount of accepted hearing loss. The letter to Neurosensory from the respondent includes a summary of Professor Black’s opinions.

21. In the letter to Neurosensory, the delegate of the respondent stated that although the accepted percentage of hearing loss was 2.48 per cent at the time liability was accepted for effect of noise exposure based on the August 1992 audiogram (the applicant remained in the reserves until 1994, listed on the inactive reserve list from July 1992), his compensable hearing loss at the time of discharge was 2.8 per cent. Whilst this is logical, I cannot find a formal decision of the respondent, which changes the accepted percent loss of hearing from 2.48 per cent to 2.8 per cent.

22. Ben Hoddinott, Manager of Clinics at Neurosensory, provided a report dated

    
    

    26 November 2013.[15] He agreed with Professor Black, that the decline in Mr Aldenton’s hearing since his discharge is not related to his military service. He said that whilst in 1997 hearing aid technology was not suitable for Mr Aldenton’s loss, today, if he presented with the same loss, he would be considered a borderline candidate for a hearing aid in the left ear. Mr Hoddinott stated that he has seen many cases where people have gained significant benefits from hearing aids despite having hearing losses of similar small magnitude to Mr Aldenton’s loss, as measured in 1992.

    [15] Exhibit 1, T17, page 43.

23. There is no medical evidence that supports Mr Aldenton’s contention that his hearing loss has progressed as a result of his military service. Mr Aldenton contends that since Professor Black has declined to comment on his hearing loss without personally reviewing him that, in itself, is evidence that the progressive loss is possibly service caused. I do not accept, on balance, that there is any likelihood Mr Aldenton’s hearing loss has increased as a result of his service. As pointed out by Professor Black, there are many reasons for hearing loss to be asymmetrical; it is not the responsibility of the respondent to determine the cause of the asymmetry. I note that there is reference to the asymmetry of his hearing loss being investigated by Ear, Nose and Throat Specialist

    
    

    Dr Ben Panizza, with results reported to be unremarkable. No cause was identified in that report. On the basis of the medical evidence before me, I find the worsening of

    
    

    Mr Aldenton’s left hearing loss is not service caused. The percentage of his accepted hearing loss remains unaltered.

24. The RCG (Rehabilitation and Compensation Group) guidelines for treatment under s 16 of the SRCA state that the hearing loss arising from Australian Defence Force employment must contribute materially to the need for the hearing aid. Mr Hoddinott stated that a loss of 2.8 per cent would be a borderline case for a hearing aid requirement. Given the severity of Mr Aldenton’s current hearing loss in his left ear, it is clear that regardless of the hearing loss accepted as service related, he would still require a hearing aid. I find that the service caused hearing loss does not contribute materially to the need for a hearing aid in this case. As already stated, Mr Aldenton has already received a contribution towards the cost of his hearing aid. The respondent does not argue that the payment was made inappropriately or that Mr Aldenton be asked to pay the money back. I see no reason to disturb the status quo.

    DECISION

25. The Tribunal affirms the decision under review.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 8 December 2014

Date of hearing	5 November 2014
Applicant	In person
Solicitors for the Respondent	Nitra Kidson, Australian Government Solicitor