Stolman and Comcare

[2006] AATA 644

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 644

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/470

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN STOLMAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member MD Allen

Date21 July 2006

PlaceSydney

Decision The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant suffers a noise induced bilateral hearing loss due to his employment with the Commonwealth Bank of Australia.
The Respondent is to pay the Applicant's costs.

(Sgd)  M D Allen

..............................................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – bilateral sensorineural hearing loss  - Applicant undertook pistol shooting once a year whilst in the employ of the Commonwealth Bank of Australia  – Applicant gave history of no other exposure to noise –decision under review set aside and remitted to Respondent with the direction that the Applicant suffers a noise induced bilateral hearing loss.

Safety, Rehabilitation and Compensation Act 1988 – s 124

Compensation (Commonwealth Government Employees) Act 1971 s 27, s 54

Re Lees v Comcare (1999) 56 ALD 84

REASONS FOR DECISION

21 July 2006 Senior Member M D Allen

1.      By application made the 18^th day of April 2005, the Applicant sought review of a reviewable decision that affirmed a prior determination rejecting his claim for compensation for the injury described as “sensorineural hearing loss (bilateral)”.

2.      The Applicant’s claim was made on 1 October 2004, although the events giving rise to the claim are alleged to have occurred in the years 1963 to 1982. The Applicant also suffers from tinnitus and although this condition has never been considered by the Respondent, there is evidence that that condition may have been caused by the same incidents which caused the sensorineural hearing loss, namely exposure to noise. As however, this disease has never been the subject of the reviewable decision, it is not a matter I can determine in these proceedings, see Lees v Comcare (1999) 56 ALD 84.

3. As the Applicant first became aware that his hearing loss was noise induced in April 1998 when his general practitioner received the report of Dr Dhasmana dated 21 April 1988, then a question arose as to whether the claim was statute bound by failure to comply with ss 54(17) of the Compensation (Commonwealth Government Employees) Act 1971 as it was not made within six months from the Applicant becoming aware that he had sustained the injury.

4.      After hearing counsel for the parties, I ruled as a preliminary point that in the circumstances of this matter the Respondent had not been prejudiced by the delay, therefore, pursuant to ss 54(6), the claim was deemed to have been made within time.

5.      The claim arises from pistol shooting undertaken once a year by the Applicant in the years 1963 to 1982 whilst he was an employee of the Commonwealth Bank of Australia. He alleges that the exposure to noise during these activities caused both sensorineural hearing loss and tinnitus.

6.      In evidence, the Applicant stated that he had commenced employment with the Commonwealth Bank in 1963. Originally his employment was that of a clerk but shortly afterwards he advanced to the position of a teller. He said he was then 17 years of age.

7.      As a teller, he was issued with a pistol, being a Browning 9 mm or a Browning .32.  Having being issued with the pistol, he was required once a year to undertake firing practice with it. These practices took place annually and were conducted, in his case, in every year but one in the period 1963 to 1982. In 1983 the practice of keeping pistols in bank branches ceased.

8.      In the Applicant’s case, the practice was usually in a quarry although on occasions a pistol range was used. He fired about 20 rounds although the practice was to take two boxes of ammunition each containing 50 rounds to the practices. Staff not firing would stand around behind the staff members firing. On only one occasion when at the Morisset pistol club range was he provided with and used hearing protection while firing.

9.      After every such practice shoot he noted that his ears would ring and that the ringing in his ears would persist for a week afterwards. He denied undertaking any other noisy activity such as service in the Army Reserve and in particular, an allegation that he had conducted a lawn mowing business.

10.     The Applicant left the employment of the Commonwealth Bank in 1994 and was then engaged in Real Estate businesses.

11.     The Applicant’s evidence as to attendance at quarry for pistol practice was, to a degree, corroborated by the evidence of a Mr Westacott. Mr Westacott also stated that the average attendance at a “shoot” was 4 to 5 people and that “the shoot would continue until all old ammunition was used. As I recall the branch issue was 2 boxes of 50 rounds, so enthusiastic shooters could get to shoot 20 or 30 rounds.”

12.     A point of difference between the parties is just how loud the noise of a shot from a 9 mm pistol is. Some statements referred to the report as not being particularly loud but these comments are subjective. Exhibit A2 is a document obtained apparently from the internet, entitled “Gunfire Noise Level Reference Chart”. In that document it is stated that a Dr Krammer Ph.D., of Ball State University, Muncie, Indiana has documented the sound pressure levels from a 9 mm pistol as 159.8 dB, and that of a  .32 ACP as 153.5 dB.

13.     The document also makes the claim that “the threshold of pain is 140 dB.”

14.     I agree with the Respondent that in many ways the material in the document is unsatisfactory. No detail is given as to how the testing was carried out and no detail is given as to whether the sound pressure was measured at the muzzle or at the distance of the ear of a person holding a pistol at arms length. However it is the only evidence before me regarding noise levels and the Respondent has not conducted any tests of its own or produced any contravening research despite intimations  that such research would be of assistance.

15.     In 1998, the Applicant attended Dr Dhasmana. He stated that attendance had been provoked by his wife who complained of his inability to hear. Previously, in his last period of employment with the Commonwealth Bank, he had been accused of ignoring colleagues when in fact he had not heard them, plus he experienced a mild ringing in his ears.

16.     Dr Dhasmana, a Consultant Otolaryngologist, in a report to the Applicant’s general practitioner dated 21 April 1998 stated inter alia:

“He was in Commonwealth Security for years and had a pistol shooting practice one (sic) a year for twenty years without ear protection. However, he noticed a hearing problem for the past five years… audiogram which showed mainly sensorineural hearing loss in both ears in higher frequencies but worse on the right side. There may be a slight conductive component on the right side.”

Subsequently, a CT scan proved negative. As pointed out by Dr Carroll, that simply meant that the scan revealed no cause for the hearing loss.

17.     In a later report to the Applicant’s solicitors dated 31 October 2001, Dr Dhasmana noted that the Applicant complained of constant bilateral tinnitus and stated:

“Hearing test shows him to have bilateral, atypical hearing loss but worse in the higher frequencies with some conductive component. The percentage hearing loss in each ear using high frequencies was found to be probably consistent with the diagnosis of acoustic trauma.”

18.     Subsequently Dr Finlay-Jones, Consultant Ear Nose and Throat Specialist, in a report to the Applicant’s solicitors dated 3 November 2003 stated:

”His audiometric configuration indicated a mild increasing to a severe bilaterial sensorineural hearing loss. Weber was lateralised to the centre and Rinne was positive. The shape of his audiometric configuration would be said to be consistent with a noise induced pattern”.

19.     Subsequently Dr Finlay-Jones opined in a report dated 14 March 2006, that the aetiology of the Applicant’s hearing loss was noise in the 155.3 dB range and that he did not find any evidence of a “mixed” hearing loss, that is to say a conductive as opposed to a noise induced hearing loss.

20.     In cross-examination, Dr Finlay-Jones reiterated that in his opinion, given the history of no other exposure to noise, the Applicant’s sensorineural hearing loss was due to noise exposure whilst a bank employee. He also added that on the audiogram performed by Dr Dhasmana, there were 20 dB of loss attributable to a conductive component.

21.     Re-examined, Dr Finlay-Jones stated that any noise over 140 dB is accepted as causing damage (to hearing). This figure was also cited by Dr Carroll, Ear Nose and Throat Surgeon who gave evidence for the Respondent, as a level of noise to be avoided.

22.     The Applicant was examined by Dr Carroll on 29 July 2005. His diagnosis was bilateral sensorineural hearing loss with no conductive components. His opinion was that the Applicant’s employment with the Commonwealth Bank had not caused or materially contributed to that loss. He added that the history of noise exposure was quite limited and disproportionate to the degree of hearing loss.

23.     A further report by Dr Carroll dated 28 April 2006 admitted to a possibility of a work caused hearing loss but Dr Carroll considered that this was not probable. One reason for rejecting a noise induced hearing loss was that the extent of loss in the low tones of the audible range was greater for the Applicant than that encountered even in those with prolonged exposure to extreme noise levels. In the case of the Applicant, his noise exposure was quite limited and not likely to involve the lower frequencies.

24.     So far as the Applicant’s tinnitus is concerned, Dr Carroll opined that tinnitus is more common following impulse type noise than noise induced hearing loss due to more chronic exposure. When it does occur it is almost immediately apparent following the noise exposure, as reported by the Applicant following the shooting exercises. If however the tinnitus resolves, as it did with the Applicant, it should not re occur.

25.     In evidence, Dr Carroll stated that the Applicant had not, in his opinion, suffered any hearing impairment due to noise exposure. He pointed out that a component of the hearing loss recorded in the audiogram of Dr Dhasmana in April 1998 was a conductive hearing loss. On his calculations, based on Dr Dhasmana’s audiogram, the amount of binaural hearing loss at that time was 5.4 per cent.

26.     Cross-examined, Dr Carroll agreed with Dr Finlay-Jones that the hearing loss suffered by the Applicant between the frequencies of 2000 to 4000 Hz was consistent with noise induced hearing loss. He rejected totally the suggestion that acoustic trauma leading to hearing loss could cause or contribute to further hearing loss after the injurious exposure had ceased. He also reiterated that the medical profession is still looking for the mechanisms of tinnitus being generated, however acoustic trauma caused tinnitus does not re-occur if it has previously resolved.

27.     Both Dr Dhasmana, who carried out the initial audiogram in 1998 and Dr Finlay-Jones opined that there was a hearing loss attributable to acoustic trauma. As pointed out by Drs Dhasmana and Carroll there is also a conductive component but the only exposure of the Applicant to noise sufficient to cause hearing loss was when he was employed by the Commonwealth Bank.  I accept the Applicant’s evidence that the pistol shooting took place without ear protection, except on one occasion, and that he fired up to 20 rounds and was present while up to 100 rounds were fired. The noise generated during the pistol shooting also caused a transient tinnitus and this strengthens my opinion that the Applicant suffered a noise induced hearing loss.

28.     Dr Carroll has calculated the percentage of noise induced hearing loss as 5.4 per cent and I accept these calculations. In evidence, Dr Carroll opined that this range of hearing loss would not be assisted by hearing aids however, the work caused sensorineural hearing loss suffered by the Applicant has played a material part in the overall hearing loss suffered by the Applicant.

29.     So far as the Applicant’s tinnitus is concerned, although the matter was not before me, both Drs Finlay-Jones and Carroll agree that the actual cause of tinnitus is not known. As pointed out by Dr Finlay-Jones, a person can suffer tinnitus without exposure to noise. I accept however, so far as it is relevant, Dr Carroll’s evidence that if tinnitus is transitory, that is to say if it resolves, then the cause of the transitory tinnitus cannot be said to be the cause of tinnitus occurring at a later date.

30.     As I am satisfied on the evidence before me that the Applicant’s bilateral sensorineural hearing loss was caused by the pistol shooting undertaken by him  while employed with the Commonwealth Bank, the decision under review is set aside and this matter remitted to the Respondent. The Respondent is to pay the Applicant’s costs. 

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)           .....................................................................................
  Associate

Date/s of Hearing  28 February and 19 June 2006
Date of Decision  21 July 2006
Counsel for the Applicant         Mr C Hart
Solicitor for the Applicant          Bale Boshev Lawyers
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Sparke Helmore