Thatcher v Cessnock City Council
[2022] NSWPIC 37
•31 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Thatcher v Cessnock City Council [2022] NSWPIC 37 |
| APPLICANT: | Phillip Mark Thatcher |
| RESPONDENT: | Cessnock City Council |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 31 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim made by the applicant under section 60 of the Workers Compensation Act 1987 (1987 Act) for the costs associated with the fitting of digital binaural hearing aids; whether digital binaural hearing aids are reasonably necessary treatment is in issue; Held – digital binaural hearing aids are reasonably necessary treatment resulting from work-related hearing loss and tinnitus; the respondent is to pay the costs associated with the fitting of digital binaural hearing aids in accordance with section 60 of the 1987 Act. |
| DETERMINATIONS MADE: | 1. Digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus the applicant has sustained. 2. The respondent is to pay the costs associated with digital binaural hearing aids in accordance with s 60 of the Workers Compensation Act1987. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Philip Mark Thatcher (Mr Thatcher) was previously employed by the respondent, Cessnock City Council (Council). Mr Thatcher is currently 61 years of age.
Mr Thatcher worked with Council between April 2018 and June 2018 where he was exposed to loud noise. Since July 2018 Mr Thatcher has been employed by Maitland Council, working as an Assistant Team Leader in the Waste Depot.
In these proceedings Mr Thatcher makes a claim made under s 60 of the Workers Compensation Act 1987 (1987 Act) for costs associated with digital binaural hearing aids.
Mr Thatcher’s claim for costs associated with digital binaural hearing aids is declined and in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act1998 he has been issued with notice dated 23 October 2020. The Council considers digital binaural hearing aids are not reasonably necessary treating for the work-related hearing loss and tinnitus Mr Thatcher has sustained.
ISSUES FOR DETERMINATION
The parties agree the following issue remains in dispute:
(a) whether digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus Mr Thatcher has sustained.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
Mr Thatcher’s claim for compensation came before me for teleconference on 2 December 2021. Mr Bechelli, solicitor, appeared in the interests of Mr Thatcher and Ms Ulmer, solicitor, appeared in the interests of Council. Mr Thatcher was present.
With Mr Thatcher’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 13 December 2021. Mr Hallion of counsel appeared for Mr Thatcher, instructed by Mr Bechelli. Mr Saul of counsel appeared for Council, instructed by Ms Ulmer. Mr Thatcher was present and Mr Wilson from StateCover was also present during the conciliation phase of the listing.
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
Admissibility of reports prepared by Audiometrists
Mr Thatcher sought to rely on reports dated 31 May 2019[1] and an unknown date in September 2021[2] prepared by two separate audiometrists.
[1] Application to Resolve a Dispute (ARD) at p 31.
[2] ARD at p 33.
Council submitted the status of an audiometrist was not that of an Ear Nose and Throat Specialist (ENT) and as these reports had not been prepared by persons treating Mr Thatcher, but rather had been prepared by persons who were engaged to provide him with hearing aids, the reports should not be admitted into evidence.
Mr Thatcher pressed for admission of the reports prepared by the separate audiometrists. Mr Thatcher principally relied on BlueScope Steel (AIS) Pty Ltd v Sekulovski[3] and submitted the persons who prepared these reports were in essence treating Mr Thatcher in that his attendance on them was relevant to the provision of hearing aids which would assist him with the work-related hearing loss and tinnitus he has sustained.
[3] [2019] NSWCA 136.
I have considered the submissions made by counsel. I understand an audiometrist to be a hearing care professional who specialises in the non-medical assessment and management of communication difficulties caused by hearing loss, and while I accept Council’s submission that the status of the audiometrists is not that of an ENT I have allowed the reports of the audiometrists to be admitted into evidence with a view to affording the reports their appropriate evidentiary weight.
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr Thatcher
Mr Thatcher provided two statements, the first is dated 6 November 2020[4] and the second is dated 27 May 2021[5]. In his later statement Mr Thatcher relevantly pointed out that while Dr Fernandes provided opinion (discussed below) his “hearing reception levels allow me to have a normal conversation” this is not Mr Thatcher’s his actual experience. Mr Thatcher said:
“In fact, what I find is that I do not have the hearing ability essential for my effective functioning”.
[4] ARD at p 27.
[5] ARD at p 28.
Mr Thatcher described in some detail the particular difficulties he experienced at work as a result of his hearing difficulties. Mr Thatcher considered the hearing aids recommended to him which “are equipped with tinnitus masking capacity” may assist him with the work-related hearing loss and tinnitus he has sustained.
Audiometrists’ reports
In a report dated 31 May 2019 addressed to Mr Thatcher’s solicitors[6], Kayla McDade reported that Mr Thatcher had attended Bloom Hearing Specialists, Maitland, for hearing assessment on 22 March 2019, with results demonstrating “a mild to moderate sensorineural hearing loss bilaterally”. Ms McDade reported she had recommended the fitting of WIDEX Evoke Z 330 RIC hearing aids and Dex products “to best suit his hearing and communication needs”. She described these hearing aids as having “sophisticated noise management systems”, which she said would provide Mr Thatcher “with additional benefits which can be tailored specifically for his hearing loss and communications difficulties”. She provided a quote for the bilateral hearing aids in the total sum of $6,426.
[6] ARD at p 3.
In a report dated 28 June 2021, which was also addressed to Mr Thatcher’s solicitors, Danielle Coonerty provided comment on opinion provided by Dr Fernandes. In essence Ms Coonerty disagreed with Dr Fernandes’ opinion that “hearing aids are not deemed reasonable and necessary” for Mr Thatcher. Ms Coonerty referred to research, which she said “shows improved understanding of speech for hearing aid wearers of even mild losses”. She made specific reference to the study “Hearing Aid Use and Mild Hearing Impairment: Learnings from Big Data”, which she said can be found in Journal of the American Academy of Audiology, September 2017, Vol 28 Issue 8.
In a report dated sometime in September 2021 Carly Dodds confirmed that Mr Thatcher first attended Bloom Hearing Specialists, Kotara, for hearing assessment on 15 September 2021, with Mr Thatcher reporting bilateral tinnitus and suspected noise induced hearing loss. Results demonstrated a mild to moderate hearing loss. Ms Dodds reported the fitting of WIDEX Evoke 330 hearing aids was recommended to suit Mr Thatcher’s hearing and communication needs with explanation of the hearing aids’ features and the following comment:
“Overall, with amplification and a match to his prescription, this will translate to improved speech understanding (especially in noise), improved sound quality, improved listening comfort (less auditory fatigue), provide better localisation of sounds (increase safety and awareness) and reduce the risk of auditory deprivation”.
Ms Dodds explained that Mr Thatcher had undertaken a trial of the recommended hearing aids between 15 September 2021 and 29 September 2021 and reported:
“Philip was amazed how clearly he could hear and subsequently realised what he’d been missing out on. He was extremely excited to re-enter a world designed around aural communication.
…conclusion, Philip reported how easy it was to listen and understand speech in all life circumstances (home, socially, recreationally), requiring less repeats and reduced levels of concentration to process speech, which lead to enhanced communication with wife, friends and family. The volume of the TV had dropped which reduced further tension in the home and he was able to converse with both familiar and unfamiliar speakers on the phone. Philip also reported he felt less isolated and an increased sense of awareness and safety, through the ability to hear environmental sounds like birds, cars, sirens and soft speech/distant conversations. He was also able to converse in conversations at work at meetings and have conversations in the car with people sitting in the back. Philip did however report that he did not notice a great reduction in his tinnitus whilst wearing his devices”.
Independent medical evidence
Dr Macarthur
Mr Thatcher was assessed by Dr Macarthur, ENT, in his capacity as independent medical examiner. Dr Macarthur provided reports dated 18 March 2020[7] and 2 August 2021[8].
[7] ARD at p 6.
[8] ARD at p 32.
In his initial report Dr Macarthur confirmed he had assessed Mr Thatcher on 5 March 2020 and described him as presenting with an approximate 20 year history of a slowly increasing deafness and a four year history of constant bilateral ringing tinnitus “which he describes as his ‘biggest problem’ being troubled by this symptom both by day and by night”. Dr Macarthur relevantly noted that from July 2018 to date Mr Thatcher had been employed as the Assistant Team Leader in the Waste Depot at Maitland City Council with his work duties being “largely supervising”. Following examination and audiology testing, which Dr Macarthur described as a “reliable audiogram”, Dr Macarthur concluded Mr Thatcher suffered from a bilateral high tone sensor-neural deafness and severe tinnitus. He ultimately assessed Mr Thatcher with 4% whole person impairment resulting from this injury and relevantly provided opinion:
“I believe it is reasonably necessary for Mr Thatcher to have binaural digital hearing aids partly for his hearing loss but mainly for his tinnitus … In my 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 suffered in the course of his employment”.
In his supplementary report Dr Macarthur provided comment on opinion provided by Dr Fernandes. Dr Macarthur confirmed the audiologist performing the audiogram in Mr Thatcher’s case was not a hearing aid provider and Dr Fernandes’ comment he had a “conflict of interest” when recommending the provision of hearing aids was “wrong”. Relevant to Dr Fernandes’ opinion that the fitting of bilateral hearing aids would irritate Mr Thatcher as “sounds would be amplified to more than tolerable levels”, Dr Macarthur said”
“This may be correct, but the only way to solve the problem is for the client to have a trial of hearing aids to see whether they are irritating or not. Such aids are likely to assist in the management of Mr Thatcher’s tinnitus”.
Dr Macarthur also confirmed he had not found any significant asymmetry in his audiogram to those of the Approved Medical Specialist (AMS) of Dr Fernandes, with confirmation:
“… I doubt very much whether there is any coexisting pathology which could be contributing to Mr Thatcher’s tinnitus”.
Dr Fernandes
Mr Thatcher was assessed by Dr Fernandes, ENT, in his capacity as independent medical examiner. Dr Fernandes provided reports dated 20 August 2020[9] and 13 April 2021[10].
[9] ARD at p 17.
[10] Reply at p 1.
In his initial report Dr Fernandes confirmed he assessed Mr Thatcher on 19 August 2020 and described him of complaining of a gradual, progressive and bilateral hearing loss for approximately five - seven years and tinnitus for six and a half years which was “constant, maskable, high pitched, does disturb his sleep pattern, does interfere with activities of daily living”. Dr Fernandes noted:
“Mr Phillip Thatcher sates that he has difficulty understanding conversation in the presence of background noise, has the television turned up to the discomfort of fellow viewers and has difficulty understanding on the telephone”.
Following examination and audiology testing Dr Fernandes concluded Mr Thatcher suffered asymmetric hearing loss and tinnitus. He ultimately assessed him with 0% whole person impairment resulting from this injury and relevantly provided opinion:
“Hearing aids are not reasonably necessary as a result of the compensable injury, as, in the audiogram that I obtained it appears that the speech reception frequencies are not significantly affected…”.
In his supplementary report Dr Fernandes conceded he was unable to definitively attribute the cause of the tinnitus which Mr Thatcher suffered to an alternate cause. He also provided explanation as to why he did not consider the level of binaural hearing loss Mr Thatcher had sustained to be sufficient to require hearing aids:
“… Such low thresholds in the speech reception thresholds are not benefitted by hearing aids. In fact amplification provided by hearing aids at this level of hearing may cause irritability…
Also the speech reception thresholds in the instant case are 90% at 60dB on the left and 95% at 60dB on the right… Conversational voice occurs at 60dB at which 95% of words are recognised by the claimant. This is adequate for hearing normal conversation. Besides, various other clues – context of topic, lip movements, stress and intonation, familiarity with speaker etc are also available in a conversation to improve understanding”.
Medical Assessment Certificate
Mr Thatcher was assessed on by Dr Williams, ENT, in his capacity as an AMS. The AMS provided a Medical Assessment Certificate (MAC) dated 28 January 2021[11].
[11] Reply at p 4.
In the MAC the AMS confirmed he assessed Mr Thatcher on 12 and 13 January 2021. He reported Mr Thatcher provided a four year history of bilateral gradually progressive hearing loss and a history of constant bilateral ringing in the back of his head since 2017, which both interfered with his daytime activities and his sleep. The AMS noted Mr Thatcher had discussed his tinnitus with his treating medical practitioner and had been provided with a referral for a hearing test. The AMS relevantly noted Mr Thatcher had been employed as a Supervisor at the Waste Depot with Maitland City Council for two and a half years.
Following examination and audiology testing (which the AMS perhaps rather curiously reports was performed on 22 September 2020) the AMS provided opinion:
“He has suffered from occupational noise exposure causing right sensorineural hearing loss and an equal amount in the left ear”.
The AMS also provided opinion Mr Thatcher had sustained severe tinnitus. He ultimately assessed him with 0% whole person impairment resulting from this injury but in response to specific questioning as to whether he considered hearing aids were reasonably necessary treatment for this injury, he said:
“Considering my medical history, my medical examination and my audiogram I formed the opinion hearing aids (with sound generator capability) are reasonably necessary for the injury if retrocochlear pathology is excluded by his treating Doctors and a trial of hearing aids (with sound generator capability) is successful”.
Relevant to the issue of hearing aids and as to whether they are reasonably necessary treatment for the hearing loss and severe tinnitus Mr Thatcher has sustained, the AMS noted Dr Macarthur recommended Mr Thatcher be fitted with hearing aids “stating ‘I believe it is reasonably necessary … for binaural hearing aids … mainly for his tinnitus” and in noting Dr Fernandes did not recommend Mr Thatcher be fitted with hearing aids, he provided comment:
“But Dr Fernandes merely considered his hearing loss alone. And did not consider as to whether hearing aids are a reasonably treatment for his severe work related tinnitus”.
Submissions
Mr Hallion and Mr Saul made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.
Determination
Whether digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus Mr Thatcher has sustained.
Liability is not disputed for the hearing loss and tinnitus Mr Thatcher has sustained and accordingly the only issue for determination in this matter is whether the digital binaural hearing aids Mr Thatcher requires are reasonably necessary treatment as a result of the work-related hearing loss and tinnitus he has sustained. It is evident that while Mr Thatcher suffers severe tinnitus, his hearing loss is mild.
Section 60 of the 1987 Act provides:
“60 (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)”.
What constitutes reasonably necessary treatment was considered in Rose v Health Commission (NSW)[12]. Burke CCJ 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.”
[12] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), 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, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties 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.
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.”
In Diab v NRMA Ltd[13], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[13] [2014] NSWWCCPD 72.
“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.
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”.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts in each case as discussed in Kooragang Cement Pty Ltd v Bates[14]. In this matter Mr Thatcher is required to establish the work-related hearing loss and tinnitus he has sustained materially contributes to the need for bilateral hearing aids. This requirement was confirmed in Murphy v Allity Management Services Pty Ltd[15].
[14] (1994) 35 NSWLR 452.
[15] [2015] NSWWCCPD 49.
It is evident Mr Thatcher attended Bloom Hearing Specialists, Maitland for hearing assessment as early 22 March 2019, following which an audiometrist recommended the fitting of bilateral hearing aids.
Mr Thatcher was subsequently assessed by Dr Macarthur on 5 March 2020 and by Dr Fernandes on 19 August 2020. Both Dr Macarthur and Dr Fernandes are ENTs. While Dr Macarthur and Dr Fernandes agreed Mr Thatcher had sustained mild bilateral hearing loss and severe tinnitus, Dr Macarthur formed the view it was reasonably necessary for Mr Thatcher to be fitted with bilateral hearing aids “partly for his hearing loss but mainly for his tinnitus” whereas Dr Fernandes formed the view it was not reasonably necessary for Mr Thatcher to be fitted with bilateral hearing aids as “it appears that the speech reception frequencies are not significantly affected”. Dr Fernandes in fact considered the amplification that would be provided by the fitting of hearing aids may cause “irritability”, which was a proposition with which Dr Macarthur did not disagree.
In the MAC dated 28 January 2021 following his assessment of Mr Thatcher a fortnight or so beforehand, the AMS noted Mr Thatcher had complained to his general practitioner about his tinnitus and had been provided with a referral for a hearing test. Although following his assessment of Mr Thatcher the AMS agreed with Dr Macarthur the fitting of bilateral hearing aids was reasonably necessary treatment for the bilateral hearing loss and tinnitus Mr Thatcher had sustained, the AMS’ opinion was tempered with comment that retrocochlear pathology be excluded by Mr Thatcher’s treating doctors and a trial of hearing aids be successful. While there is no evidence before the Commission that demonstrates retrocochlear pathology has been excluded by Mr Thatcher’s treating doctors, there is evidence before the Commission Mr Thatcher has completed a trial of hearing aids, which he considered successful.
Relevant to Dr Fernandes’ opinion regarding the fitting of hearing aids, the AMS correctly pointed out Dr Fernandes only considered the hearing loss sustained by Mr Thatcher and did not consider whether the hearing aids are reasonably necessary treatment for his severe tinnitus. Although it is true Dr Macarthur considered the hearing aids are reasonably necessary treatment mainly for the severe tinnitus sustained by Mr Thatcher and Mr Thatcher has reported he did not notice a great reduction in his tinnitus while fitted with the hearing aids, Dr Macarthur also considered the hearing aids are reasonably necessary treatment for his hearing loss and Mr Thatcher has reported significant hearing benefits while fitted with the hearing aids, including “an increased sense of awareness and safety”.
Mr Thatcher said he does not currently have “the hearing ability essential for my effective functioning”. He has described in some detail the particular difficulties he experiences at work as a result of his hearing loss and severe tinnitus, which is of concern to me. While it may be the fitting of hearing aids may not greatly assist Mr Thatcher with the severe tinnitus he has sustained, Dr Macarthur has in part recommended the fitting of hearing aids as reasonably necessary treatment for the hearing loss Mr Thatcher suffers and Mr Thatcher has reported significant hearing benefit while fitted with hearing aids.
While I accept audiometrists are not medical practitioners specialising in hearing loss, I understand them to be professionals who specialise in the non-medical assessment and management of communication difficulties caused by hearing loss and I note Ms McDade and Ms Dodds, being the audiometrists on who Mr Thatcher attended for hearing assessment on two separate occasions, both recommended the fitting of hearing aids, with Ms Dodds being involved in Mr Thatcher’s reportedly successful hearing aid trial.
Mr Saul drew my specific attention to the decision of Thi No Dang v Canadian Bacon Pty Ltd[16] in which an award was entered for the respondent in circumstances where the applicant had sustained mild hearing loss. However, as Mr Saul correctly pointed out, I am not bound by the decision of Dang and following review of the evidence as a whole and careful consideration of counsels’ submissions, having particular regard to the authorities discussed, I am comfortably satisfied Mr Thatcher has established that the work-related hearing loss and tinnitus he has sustained materially contributes to a need for bilateral hearing aids as recommended.
[16] [2021] NSWWCC 37 (Dang).
Although Dr Fernandes provided opinion it was not reasonably necessary for Mr Thatcher to be fitted with bilateral hearing aids, I prefer the opinions of Dr Macarthur and the AMS in circumstances where Mr Thatcher has reported a significant benefit during the trial fitting of hearing aids. I accept the digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus Mr Thatcher has sustained.
SUMMARY
It is not disputed Mr Thatcher has sustained work-related hearing loss and tinnitus.
I have determined digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus Mr Thatcher has sustained. Council is to pay the costs associated with the digital binaural hearing aids in accordance with s 60 of the 1987 Act.
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