Sternbeck v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sternbeck v Secretary, Department of Education [2025] NSWPIC 138
APPLICANT:	Wendy Sternbeck
RESPONDENT:	Secretary, Department of Education
MEMBER:	Rachel Homan
DATE OF DECISION:	9 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for bilateral hearing aids and desk microphone; whether applicant sustained noise induced hearing loss; whether employment caused a loss of hearing pursuant to section 17; Held – applicant’s expert evidence preferred; compensable injury pursuant to section 17; treatment reasonably necessary pursuant to section 60; award for the costs of supplying and fitting binaural digital hearing aids and a desk microphone in accordance with the current Workers Compensation (Hearing Aid Fees) Order.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s employment with the respondent was employment to the nature of which a loss of hearing caused by gradual process was due, pursuant to s 17 of the Workers Compensation Act 1987. 2. Binaural hearing aids and a desk microphone are reasonably necessary as a result of injury pursuant to s 60 of the Workers Compensation Act 1987. The Commission orders: 1. The respondent to pay the costs of supplying and fitting binaural digital hearing aids and a desk microphone in accordance with the current Workers Compensation (Hearing Aid Fees) Order. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Wendy Sternbeck (the applicant) was employed by the Secretary, Department of Education (the respondent) as an administrator between 1985 and 2018. The applicant claims that her employment with the respondent was of a nature as to cause noise induced hearing loss.
On 18 August 2022, the applicant sought compensation from the respondent’s insurer pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of supplying and fitting of binaural digital hearing aids. Liability to pay compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 22 November 2022.
The decision to dispute liability was maintained following internal review on
26 September 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 16 January 2025. The applicant seeks compensation for the costs of supplying and fitting binaural digital hearing aids and a desk microphone.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant’s employment with the respondent was employment to the nature of which a loss of hearing caused by gradual process was due, pursuant to s 17 of the 1987 Act, and
(b) whether binaural hearing aids and a desk microphone are reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission conciliation conference and arbitration hearing on 7 April 2025. The proceedings were conducted on the Microsoft Teams platform. The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Gabriela Faura. The respondent was represented by Mr Paul Stockley of counsel instructed by Ms Fiona King. A representative from the respondent’s insurer was also present.
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 Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and all attachments, and
(c)    supplementary report of Dr Kenneth Howison dated 7 April 2025.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement dated 21 May 2024.
The applicant confirmed that she was employed as an administrator by the respondent between 1985 and 2018. During her employment, the applicant said she was exposed to noise from the general crowd, bells, six typewriters, printers, photocopy machines, fax machines and multiple telephones. The school bell rang every 40 minutes and during meal breaks. The noise from the typewriters was continuous. The applicant could hear printer noise from other rooms. The applicant used a headset to answer telephones as part of her duties. The applicant could hear telephone rings all the time. The ringing noise was said to be “deafening”. The applicant said it was extremely noisy and she was not provided with hearing protection.
The applicant worked five days per week and six to seven hours per day. The applicant said that she was exposed to noise for the whole day. The noise was such that the applicant had to raise her voice to communicate with a co-worker standing about a metre away.
The applicant described noticing progressive hearing problems over the past 33 years. The applicant described her hearing difficulties, including a constant ringing noise in her ears, which she understood to be tinnitus.
The applicant said she commenced a trial of digital hearing aids on 31 January 2023. The applicant said she had received a substantial benefit from wearing the hearing aids.

Freedom Hearing

The applicant underwent an audiological assessment on 11 February 2022 performed by audiometrist, Simon Taylor from Freedom Hearing. The audiogram was reported to show mild to moderately severe sensorineural hearing impairment bilaterally. A quote was provided for bilateral digital hearing aids and a table microphone.
On 3 March 2023, the applicant attended a follow-up assessment following a trial of hearing aids on 31 January 2023. In a report prepared by audiometrist, Kim Ritchie, the audiogram taken on 11 February 2022 was considered. Ms Ritchie reported that the audiogram showed a bilateral sensorineural deafness “consistent with that caused by extended noise exposure.”
The applicant’s hearing difficulties were described, including mild tinnitus, which did not interfere with the applicant’s daily activities or sleep patterns.
The applicant reported significant benefits from the trial of hearing aids.

Dr Fagan

The applicant relies on a medicolegal report prepared by ear, nose and throat specialist,
Dr Paul Fagan, dated 31 May 2022. Dr Fagan examined the applicant on 31 March 2022.
Dr Fagan took a history of gradual onset of auditory symptoms over 20 years and almost constant tinnitus in both ears, which the applicant first noticed 10 years earlier. There was no history of ear infections, family history of deafness or head or neck trauma or surgery. The applicant had not been subject to inordinate non-occupational noise and had no noisy hobbies. The applicant had not undergone ototoxic drug therapy or been diagnosed with tuberculosis.
Dr Fagan took a history of occupational noise exposure. It was recorded that up until 1985, the applicant worked for various employers as a librarian or cashier. These were not noisy environments.
During the period of the applicant’s employment with the respondent, Dr Fagan described the applicant’s noise exposure as:
“Exposed to noise from general crowd, bells, 6 typewriters, printers, photocopy machine, fax machines, and multiple telephones.”
With regard to the noise levels and duration of noise exposure, Dr Fagan recorded:
“No hearing protection provided. She described having to generally raise her voice in order to communicate at a distance of one metre which is indicative of ambient noise levels in excess of 90dB*. More than 2 hours of such exposure would be hazardous to a person’s hearing. She worked 5 days per week, 6-7 hours per day. She was exposed to noise for 6-7 hours in a day.”
Dr Fagan expressed the opinion that the last employment with the tendencies, incidents and characteristics to cause occupational noise induced hearing loss was the applicant’s employment with the respondent.
Dr Fagan expressed the opinion:
“Where a claimant has been exposed to occupational noise as described to me, and for 33 years as in this matter, and has hearing loss to the extent described, I am satisfied that some of the lower frequencies below 2000Hz have been affected by occupational noise exposure.
Having considered all of the evidence including the lengthy period of exposure and the configuration of the audiogram, then in my view the Applicant’s hearing loss from 1000 Hz to 4000 Hz is due to noise exposure at work. There is no other explanation identified to account for this loss apart from noise exposure. This approach is consistent with examples 9.1, 9.2, 9.3 and 9.6 at pages 46 – 51 of the NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment (4th edition) April 2016.”
Dr Fagan said that because of the “complicated nature” and severity of the applicant’s hearing loss he recommended digital hearing aids. Hearing aids were reasonable and necessary as a result of the injury. Dr Fagan also recommended the provision of a table microphone to provide greater acoustic support in group settings. This accessory was said to complement the hearing aids and improve their general uptake.

Dr Howison

The respondent relies on medicolegal reports prepared by ear, nose and throat surgeon,
Dr Kenneth Howison, dated 28 October 2022 and 7 April 2025.
In his first report, Dr Howison took an employment history that included work as a secretary in an office environment for the respondent. Dr Howison recorded that the applicant had reported that she was exposed to the noise of typewriters, fax machines, parents speaking through the door and the noise of children. Dr Howison recorded that the applicant explained that she did not have to shout above this noise to be heard by colleagues at a distance of
1m. The applicant was able to use the telephone. Based on this history, Dr Howison expressed the opinion that employment with the respondent was not noisy employment.
Dr Howison commented that noise induced hearing loss was typically bilaterally symmetrical and progressive from the low to high frequencies. Based on the history, Dr Howison did not consider that the applicant was working in noise sufficient to be responsible for causing noise induced hearing loss. Dr Howison said the applicant agreed she was not exposed to loud noise. Dr Howison also commented that the loss of hearing at the frequency 3000Hz was greater than at 4000Hz in the right ear and this was not consistent with noise induced hearing loss.
Dr Howison concluded that the applicant’s employment with the respondent did not contribute to any portion of her hearing loss through exposure to unacceptable noise levels.
Dr Howison was asked to comment on the assessment of Dr Fagan. Dr Howison observed that his audiogram was not the same as the audiogram carried out by Dr Fagan. Dr Fagan’s audiogram showed a loss of hearing in the left ear at 3000 and 4000Hz that was the same. The loss of hearing in the right ear at 2000 and 3000 Hz was also the same. Dr Howison said this was not consistent with a finding of industrial deafness.
Dr Howison also said the audiogram carried out by Freedom Hearing also differed from his audiogram, showing loss of hearing at 2000 and 3000 Hz in both ears to be the same, which was not consistent with noise induced hearing loss.
Dr Howison said he disagreed with Dr Fagan’s statement that the applicant had constant tinnitus as she told him that she did not suffer from tinnitus.
Dr Howison disagreed with Dr Fagan that the applicant required hearing aids as a result of industrial deafness.
Dr Howison did agree that hearing aids were the only means of treating the applicant’s asymmetrical bilateral sensorineural hearing loss.
In his supplementary report, Dr Howison expressed the same opinions.

Applicant’s submissions

The applicant referred to her statement evidence regarding the nature, extent and duration of her exposure to noise during her employment with the respondent. It was noted that the applicant had to raise her voice to communicate with a co-worker standing a metre away.
The applicant referred to the report from Freedom Hearing in which it was found that the applicant had bilateral hearing loss consistent with a noise induced loss. The applicant had trialled hearing aids for a period and found them to be beneficial.
Dr Fagan agreed that the applicant would benefit from hearing aids. The applicant submitted that Dr Howison also agreed hearing aids would be beneficial albeit not for any noise induced hearing loss.
There was no suggestion that the cost of the hearing aids was unreasonable. Nor was any issue taken with the nature of the equipment proposed. If the Commission were to find in the applicant’s favour on “injury”, the applicant submitted that it would also accept that the treatment expenses claimed were “reasonably necessary” and an order ought to be made for payment of those costs in accordance with the applicable Fees Order.
On the question of “injury”, the applicant observed that there was no evidence to contradict her description of the nature and characteristics of her employment with the respondent.
Dr Howison recorded that the applicant did not have any difficulty communicating with a co-worker standing a metre away. This was said to be in contradiction to the applicant’s statement evidence and history given to Dr Fagan.
Dr Howison also recorded that there was no history of tinnitus, which was plainly inconsistent with the applicant’s statement and the history recorded by Dr Fagan. The applicant submitted that if Dr Howison could make an error in relation to that detail, the Commission would have doubts about the reliability of other aspects of Dr Howison’s report.
Given these inconsistencies in the histories, the applicant submitted that the Commission would conclude that the version set out in the applicant’s statement and Dr Fagan’s report was to be preferred.
The applicant observed that Dr Fagan’s audiogram was more closely aligned with that performed by Freedom hearing than the audiogram taken by Dr Howison.
There was no other historical explanation for the applicant’s loss of hearing. Dr Howison agreed that hearing aids were the only means of treating the applicant’s hearing loss. The applicant submitted that the Commission would be satisfied on the balance of probabilities that the applicant’s exposure to noise in employment with the respondent was as described in her statement. That was the same factual basis underlying Dr Fagan’s opinion and consistent with the Freedom Hearing testing. In contrast, Dr Howison’s report was premised on an incorrect history regarding the nature of the noise exposure and the presence of tinnitus.
The applicant submitted that, given the doubt cast upon the underlying basis for Dr Howison’s opinion, the Commission would not prefer it over the opinion expressed by Dr Fagan.
The Commission would conclude that the applicant’s employment with the respondent was consistent with noise induced hearing loss and that the respondent was the last relevant employer for the purposes of s 17 of the 1987 Act. An order would be made for payment of the treatment expenses pursuant to the Fees Order.

Respondent’s submissions

The respondent submitted that a different conclusion ought to be drawn from the evidence.
The respondent submitted that the failure to provide evidence as to the nature of the applicant’s employment conditions as far back as 1985 was unsurprising.
As a matter of common knowledge, the Commission would accept that noisy typewriters and fax machines went out of use many years ago. The applicant’s statement evidence suggested that she was exposed to such noise until such time as she ceased work. This was inherently improbable and raised questions as to the reliability of the applicant’s evidence.
The respondent submitted that it was unclear why Dr Howison would record the history that he did if the applicant had not told Dr Howison that she did not have to raise her voice to communicate with co-workers and did not have tinnitus. Those matters were at the heart of the questions Dr Howison was asked to consider. The applicant’s own history was unreliable. The respondent submitted that the Commission would be satisfied that the history recorded by Dr Howison was the history given to him. The respondent observed that the applicant had not put on any evidence cavilling with the history recorded by Dr Howison. Dr Howison’s conclusions were said to be founded upon appropriate assumptions.
The respondent observed that Dr Fagan had suggested that the applicant’s hearing loss was “complicated” but did not say what aspects was complicated. The case appeared simple.
Dr Howison did not identify any complication. Dr Howison said that typically noise induced hearing loss was symmetrical and progressive. Looking at the audiograms, there was no bilateral symmetry and the flat lines indicated that the loss was not progressive. Dr Howison said this was inconsistent with noise induced hearing loss.
The respondent submitted that Dr Howison’s analysis of the audiograms was not addressed by Dr Fagan.. The objective data was inconsistent with noise induced hearing loss. In those circumstances, the Commission would not be satisfied that the applicant had discharged her onus of demonstrating a noise induced hearing loss.
The respondent conceded that there was no difference of medical opinion on the necessity for the treatment expenses.

Applicant’s submissions in reply

The applicant submitted that her statement evidence contradicted Dr Howison’s history. The Commission would conclude that there was a simple error that underpinned the whole of Dr Howison’s reasoning. There was no need to try to theorise as to why he made an error.
The applicant submitted that interpretation of the audiograms was a matter for expert opinion. That expertise was held by the ENT specialists and audiometrists. The preponderance of expert opinion was consistent with there being noise induced hearing loss.

FINDINGS AND REASONS

Section 17 of the 1987 Act contains special provisions in respect of hearing loss injuries:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a) for the purposes of this Act, the injury shall be deemed to have happened—
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…
(c) compensation is payable by—
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…
(2) Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.”

In A and G Engineering Pty Ltd v Civitarese[1] the Court commented that s 17:
“...provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary, under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that the employment brought about or contributed to the disease; See Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 at 440); Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, section 17 proceeds on a series of fictions or assumptions, upon which a workers entitlement to recover an award under s 66 is based.”
[1] (1996) 41 NSWLR 41.
In Dawson t/as The Real Cane Syndicate v Dawson, Roche DP said (at [44]):
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness. That is exactly what Mr Dawson did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried. The Arbitrator’s acceptance of that evidence discloses no error.”
The dispute in this case arises from the different histories recorded in the evidence regarding the nature of the applicant’s employment with the respondent and the differing expert opinions regarding whether there has been a noise induced hearing loss.
The analysis of the evidence set out above indicates that the history recorded by the applicant’s expert, Dr Fagan aligns more closely with the history set out in the applicant’s statement evidence.
Both Dr Fagan and the applicant’s statement indicate that the noise to which the applicant was exposed during the course of her employment with the respondent was sufficient to cause her to raise her voice when communicating with a co-worker standing approximately 1m away.
This history stands in contrast with that recorded by Dr Howison, which was that the applicant said she did not have to shout to be heard by colleagues standing 1m away.
It is also appears that Dr Fagan recorded a more thorough account of the noise generators in the work environment. Consistently with the applicant’s statement evidence, Dr Fagan referred to the noise generated by bells and multiple telephones. The applicant had described the sound of ringing of telephones using her headset as “deafening”.
Dr Howison on the other hand, referred simply to typewriters, fax machines, the noise of children and parents speaking.
The applicant’s evidence regarding the nature and characteristics of her employment environment drew some criticism from the respondent. In particular, it was observed that as a matter of common knowledge typewriters and fax machines went out of use many years ago. The applicant did not specify the duration of her exposure to each of the noise sources. The applicant’s evidence is, however, uncontradicted by any evidence from the respondent regarding the nature of the work environment.
The differing histories recorded by Dr Fagan and Dr Howison with regard to whether the applicant experienced tinnitus was another matter which the applicant submitted would cause the Commission to doubt the reliability of Dr Howison’s opinions.
The applicant clearly stated that she had a constant ringing noise in her ears which she understood to be tinnitus. A history of tinnitus was also recorded in the Freedom Hearing report dated 3 March 2023.
I accept the respondent’s submission that the applicant has not addressed the inconsistencies in Dr Howison’s reports in her statement evidence. I find, however, that the preponderance of evidence favours the account set out in
Dr Fagan’s report.
The characteristics of the applicant’s employment environment and the presence or absence of tinnitus were not the only basis for Dr Howison’s ultimate opinion. Dr Howison also observed that his audiogram differed from those taken by both Dr Fagan and Freedom Hearing. Dr Howison expressed the view that none of the audiograms was consistent with noise induced hearing loss, which was typically symmetrical and progressive.
It is true that Dr Fagan has not addressed Dr Howison’s observations with regard to asymmetry and losses at the same levels. He has, however, expressed the view that his audiogram was consistent with noise induced hearing loss, particularly at the lower levels. Importantly, Ms Ritchie also expressed the view that the audiogram taken by Freedom Hearing was consistent with deafness caused by extended noise exposure. I am satisfied that both
Dr Fagan and Ms Ritchie are appropriately qualified to express the opinions they have.
I am satisfied that Dr Fagan had a reliable history of the characteristics of the applicant’s work environment. Dr Fagan considered the nature and duration of the noise exposure in giving his ultimate opinion. Dr Fagan’s audiogram and his interpretation of it was broadly consistent with that separately performed by Freedom Hearing.
Weighing all the evidence, I am satisfied that Dr Fagan’s opinion should be accepted.
I find that the applicant has sustained an injury in the nature of a loss of hearing caused by a gradual process of exposure to noise.
I am further satisfied that the applicant’s employment with the respondent was employment to the nature of which the injury was due.
As a result, I am satisfied that the applicant has sustained a compensable injury for the purposes of s 17 of the 1987 Act, for which the respondent is liable.
It has not been suggested in any of the materials before me that the treatment expenses claimed are not reasonably necessary. The applicant was reported to have derived significant benefits from the trial of hearing aids. Both Dr Fagan and Freedom Hearing have recommended the use of a desk microphone to facilitate better uptake of the hearing aids in group environments. It has not been suggested that the costs of the equipment are inordinate or that any suitable alternative treatments are available.
I find that the treatment expenses claimed are reasonably necessary as a result of injury for the purposes of s 60 of the 1987 Act.
There will be an order for the payment of such expenses in accordance with the applicable SIRA Fees Order.

[2025] NSWPIC 138

9 April 2025