Thomas v Holcim (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thomas v Holcim (Australia) Pty Ltd [2021] NSWPIC 124
APPLICANT:	Stephen Thomas
RESPONDENT:	Holcim (Australia) Pty Ltd
SENIOR MEMBER:	Mr Glenn Capel
DATE OF DECISION:	18 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for hearing aids; previous claim paid in 2010 and 2016; further claim made in 2020 for replacement hearing aids when worker in the employ of another noisy employer; no notice of injury given to current noisy employer; dispute regarding last noisy employment; Bluescope Steel (AIS) Pty Ltd v Sekulovski, Sukkar v Adonis Electrics Pty Ltd, Dawson t/as The Real Cane Syndicate v Dawson, Blayney Shire Council v Lobley, Hay v Commonwealth Steel Company Pty Ltd and Fischer v Endeavour Energy & others discussed; Held- leave granted to respondent; respondent last noisy employer for purposes of section 17(1)(a)(i) of the 1987 Act; award for the worker in respect of the claim for medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 28 June 1999 (deemed). 2. The parties resolved a claim for lump sum compensation in respect of 14.87% binaural hearing loss on 21 October 1999 and a Registration of Agreement was registered on 12 November 1999. 3. The respondent paid for hearing aids when claims were made by the applicant in 2010 and 2016. 4. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act1987 when he gave notice of injury to the respondent on 28 June 1999 (deemed). 5. The provision of bilateral digital hearing aids is reasonably necessary as a consequence of the applicant’s injury.
ORDERS MADE	6. The respondent is to pay medical expenses in respect of the supply and fitting of bilateral digital hearing aids on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Stephen John Thomas (the applicant) is 59 years old and was employed by Holcim (Australia) Pty Limited (formerly CSR Ltd) (the respondent self self-insurer) as a plant operator and front-end loader driver until he ceased work in 2009. The applicant then obtained employment with ACI Operations as a factory worker. He is still working for this employer.
On 28 June 1999, the applicant’s former solicitor served a notice of claim on the respondent for lump sum compensation for 16.8% binaural hearing loss pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The date of injury was 28 June 1999 (deemed).
The parties negotiated a compromise settlement of $9,665.50 in respect of 14.87% binaural hearing loss. This was formalised by a Registration of Agreement that was registered by WorkCover on 12 November 1999.
I understand that the applicant made claims for bilateral hearing aids and the respondent as a self-insurer paid for hearing aids in 2010 and 2016.
On 14 September 2020, the applicant’s solicitor served a notice of claim on the self-insurer for hearing aids pursuant to s 60 of the 1987 Act. The deemed date of injury was incorrectly identified as 2008.

On 30 September 2020, the self-insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had suffered a further injury of industrial deafness due to his employment with the respondent and that the respondent was not the last noisy employer. Finally, it disputed that the need for hearing aids resulted from his injury in 1999.
On 23 October 2020, the applicant’s solicitor served a further notice of claim on the self-insurer for hearing aids pursuant to s 60 of the 1987 Act, with an amended deemed date of 1999.

On 13 November 2020, the self-insurer issued a further notice pursuant to s 78 of the 1998 Act, in similar terms to its previous notice.

By an Application to Resolve a Dispute registered in the Personal Injury Commission (the Commission) on 18 March 2021 and amended at the arbitration hearing, the applicant claims medical expenses for hearing aids pursuant to s 60 of the 1987 Act as a result of injury arising out of or in the course of his employment with the respondent on 28 June 1999 (deemed).

PROCEDURE BEFORE THE COMMISSION

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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the respondent was the last noisy employer who employed the applicant in employment to the nature of which the injury was due – s 17(1)(a)(ii) of the 1987 Act, and

(b) is the provision of hearing aids reasonably necessary and is the respondent liable to pay medical expenses for hearing aids – s 60 of the 1987 Act.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    The Application with attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents received on 19 April 2021;
(d)    Statement of the applicant dated 20 April 2021 with attached documents received on 20 April 2021;
(e)    Statement of Mario Bechelli dated 21 April 2021 and attached documents received on 21 April 2021, and
(f)    Application to Admit Late Documents received on 4 May 2021.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s statements

The applicant provided a statement on 22 December 2020. He described the nature of his employment over a 22-year period and his exposure to industrial noise. He stated that he has been employed by ACI Operations as a factory worker since 2009 and he works in a mould shop where he is exposed to the noise of sandblasting and forming machines that make bottles. Ear plugs are supplied, and he has worn them for a number of years. On occasions, he has had to shout in the workshop in order to converse with fellow employees standing about one metre away.
The applicant stated that he works for eight hours per day, four days per week and he estimates that he is exposed to noise for three hours per day. He confirmed that he had received lump sum compensation from the respondent in respect of 14.8% binaural hearing loss in 1999. He had also received compensation for hearing aids.
In his statement dated 20 April 2021, the applicant confirmed that he had made a claim and had received lump sum compensation of $9,665.50 in 1999. He did not receive hearing aids at that stage, but he was later contacted by Dylan Hearing, and he was told that he was entitled to hearing aids. He was fitted with these but was unaware who paid for them.
Unfortunately, the applicant’s statement does not address his employment at the respondent, and we have to rely on the histories recorded by the qualified ENT specialists.

Report of Dr Scoppa

Dr Scoppa reported on 24 June 1999. He noted that the applicant had experienced difficulty with hearing over the previous two years. He had difficulty understanding speech on the television and over the telephone. He had particular difficulty understanding speech in the presence of background noise, and he experienced intermittent tinnitus.

Dr Scoppa recorded that the applicant had worked for CSR Readymix as a plant operator and front-end loader driver. He had been exposed to noise from plant machinery, rock crushers, air driven machinery, mobile machines, and rattle guns. Ear protection had been provided only for the last 10 years.
Dr Scoppa was satisfied that the applicant’s hearing loss and tinnitus were probably caused by occupational noise exposure. He stated that the applicant’s employment with CSR Readymix was of “a type as to probably have resulted in some degree of permanent noise induced hearing loss”. He assessed 16.8% binaural hearing loss and advised that the use of hearing aids would be of benefit, although the applicant was reluctant to use them.

Report of Dr Carroll

Dr Carroll provided a brief report to the respondent on 20 August 1999. He recorded that the applicant had been employed by CSR Readymix as an operator for 14 years and he had worked on plant maintenance where he was exposed to the noise of crushers and screens using air tools, and then as a front-end loader driver. Hearing protection had been continually worn over about the last five years of his employment.
Dr Carroll assessed 12.94% binaural hearing loss and believed that this was caused by the applicant’s work duties. He stated that hearing aids were not required, but he gave no explanation for his view.

Audiological Reports

There are two audiological reports in evidence from Industrial Diagnostics dated
4 November 2003 and 8 November 2005. There is no report that summarises the results of the testing, although there is a handwritten note on the first report that suggests that the applicant had a 17.5% binaural hearing loss in November 2003.

Reports of Dr Macarthur

Dr Macarthur reported on 10 August 2020. He noted that the applicant had noticed slowly increasing deafness over the past 30 years, particularly in the presence of background noise. The doctor recorded that he applicant had been troubled by constant bilateral ringing tinnitus for 10 to 12 years. He had been exposed to industrial noise since 2009 at his current employer, ACI Operations. The doctor noted a history of noise exposure consistent with the applicant’s statement and the fact that the applicant had benefitted from wearing binaural hearing aids in recent years.
Dr Macarthur diagnosed bilateral mid to high tone sensori-neural deafness due to exposure to loud noise over more than 30 years. The doctor was satisfied that the applicant’s employment at ACI Operations was employment to the nature to which the disease boilermaker's deafness was due and that it was the last noisy employer. He considered that this employment had the tendencies, incidents and characteristics to give rise to a material risk of noise induced hearing loss.
Dr Macarthur assessed a 21% binaural hearing loss which was the equivalent of 11% whole person impairment. This represented a further loss of 3% whole person impairment. He did not comment on the need for hearing aids.
In a report dated 6 April 2021, Dr Macarthur stated that the 14.8% binaural hearing loss that was agreed between the parties in 1999 was sufficient to warrant the use of bilateral hearing aids.

A quote for the cost of digital hearing aids was provided by Bay Audio on 27 August 2019 in the sum of $5,824.40.

APPLICANT’S SUBMISSIONS

The applicant’s counsel, Mr Hallion, submits that there is no dispute that the applicant received lump sum compensation in 1999 in respect of 14.87% binaural hearing loss as a result of exposure to noise at the respondent. Dr Scoppa indicated that the applicant had hearing loss and tinnitus. He felt that the applicant would probably be assisted by hearing aids to treat both conditions. The dispute notices acknowledged that the respondent had paid for hearing aids.
Mr Hallion submits that Dr Macarthur reported that the applicant had continued to experience difficulties with his hearing and that he had benefitted from the use of hearing aids. This confirms the on-going need. In his supplementary report, the doctor confirmed that the previous agreed loss of 14.87% was sufficient to warrant the provision of hearing aids.
Mr Hallion submits that there is no evidence to dispute that hearing aids are reasonably necessary, and the self-insurer’s actions in voluntarily paying for hearing aids in 2010 and 2016 amounts to an estoppel by conduct, or at least an admission which should be given some weight.
Mr Hallion submits that the applicant seeks replacement hearing aids based on his previous agreed loss of 14.87%, and the functional need continues to date. The further loss of hearing is not a factor, consistent with the reasoning in Bluescope Steel (AIS) Pty Ltd v Sekulovski[1].
[1] [2018] NSWWCCPD 48, (Sekulovski).
Mr Hallion submits that the respondent says that the applicant suffered an injury in subsequent employment because there is a further loss of hearing, but the applicant has not made a claim for a further loss arising from a separate injury. It is a mere assertion that the medical evidence shows a different loss, and the applicant relies on the hearing loss that was caused by his injury in 1999.

Mr Hallion submits that one only has to consider whether there was a material contribution to the applicant loss of hearing from the 1999 injury, rather than it being the sole cause. This is consistent with the reasoning in Sekulovski. There is no evidence from the respondent that the applicant has suffered a further injury to satisfy the requirements of s 17 of the 1987 Act. He submits that Hay v Commonwealth Steel Company Pty Ltd[2]and Fischer v Endeavour Energy & others[3] can be distinguished from the present matter. All of the evidence supports the position that the 1999 injury materially contributed to the need for hearing aids.
[2] [2018] NSWWCCPD 31, (Hay).
[3] [2020] NSWWCC 341, (Fischer).
In reply, Mr Hallion submits that s 17 of the 1987 Act refers to an injury which is a loss or further loss, and any claim relates to a separate loss. The issue in this matter is whether the injury sustained in 1999 materially contributed to the applicant’s current need for hearing aids. The respondent needs to establish a further loss that is material, and this requires medical evidence.
Mr Hallion submits that there is no claim for a further loss, and the need for hearing aids was established in 1999. The current claim only concerns replacement hearing aids.

RESPONDENT’S SUBMISSIONS

The respondent’s counsel, Mr Grant, submits that s 17 of the 1987 Act removes the question of causation from the equation. The section identifies who is responsible to pay compensation in situations where it is difficult to determine who is liable for the payment. A material contribution is of no relevance and there is no requirement to establish a further loss of hearing.
Mr Grant submits that the evidence shows that the applicant’s employment with ACI Operations is noisy, and the fact that it is noisy fixes the date of injury for the purposes of
s 17 of the 1987 Act. The applicant’s claim should have been made on ACI Operations.
Mr Grant submits that the nature of industrial deafness is the progression over a period of time due to micro traumata, and there is no need to establish an injury. The applicant’s employment at ACI Operations is noisy, and there has been a worsening of his condition caused by micro traumata.
Mr Grant submits that there is evidence from the audiologist and Dr Macarthur that substantiates an injury. There has been a cumulative effect caused by the applicant’s current employment, and his hearing loss has advanced since 1999.
Mr Grant submits that Dr Macarthur confirmed in his initial report that ACI Operations was the applicant’s last noisy employer, whilst the audiologist advised that the applicant required technically advanced hearing aids to address his current loss of hearing, so if it is necessary to establish that the applicant sustained an injury on the employ of ACI Operations, then this is evidence that shows the advancement of the condition.
Mr Grant submits that in a claim for medical expenses, a worker bears the onus of proving that he or she has suffered the injury of boiler maker’s deafness. This is proved by evidence of noise levels and the system of work. Once this is done, s 17 of the 1987 Act identifies the deemed date of injury. In this matter, this must be when the applicant was employed by ACI Operations. It is not necessary to prove a further loss, and a further loss represents a fresh injury. This is consistent with the reasoning in Sukkar v Adonis Electrics Pty Ltd[4].
[4] [2014] NSWCA 459, (Sukkar No.2).
Mr Grant submits that in this matter, the applicant has made a further claim, and the date of notification of the claim, namely 23 October 2020, is the deemed date of injury by reason of
s 17 of the 1987 Act. He has worked in noisy employment and this proves an injury. The absence of ACI Operations in these proceedings is irrelevant. This is clear from the decisions of Hay and Fischer.

REASONS

Was the respondent the last noisy employer who employed the applicant in an employment to the nature of which the injury was due? – 17(1)(a)(i) of the 1987 Act

There is no dispute that the applicant was exposed to noise during the course of his employment with the respondent and that he sustained an injury on 28 June 1999 (deemed).
The applicant received lump sum compensation in respect of a compromise figure of 14.87% binaural hearing loss in November 1999 and the self-insurer paid for the cost of bilateral hearing aids in 2010 and 2016. Although the respondent paid compensation on a voluntary basis, it would seem that it accepted that the applicant had suffered a compensable work-related hearing loss at the respondent and that the provision of hearing aids was reasonably necessary as a result of his injury, otherwise the prior claim would have been the subject of a dispute and a determination in the Commission.
There is no merit in Mr Hallion’s submission that there is no evidence that the applicant’s employment with ACI Operations was noisy. Whilst it is true that there are no noise level studies in evidence, this is not fatal to a claim. This was confirmed in Dawson and Others t/as The Real Cane Syndicate v Dawson[5].
[5] (2008) 7 DDCR 42 [44], (Dawson).
The applicant confirmed that he was exposed to excessive noise at his current employer in his statement dated 22 December 2020, and Dr Macarthur concluded that the applicant’s employment at ACI Operations had the “tendencies, incidents, or characteristics” to cause industrial deafness. The doctor’s opinion that ACI Operations was the last noisy employer is unchallenged. This evidence would seem to satisfy the relevant requirements discussed in Dawson and Blayney Shire Council v Lobley[6].
[6] (1995) 12 NSWCCR 52 (Lobley).
However, what is in dispute is whether the respondent was the last noisy employer who employed the applicant in employment to the nature of which his hearing loss was due in terms of s 17 of the 1987 Act.
The disease provisions are contained in ss 15, 16 and 17 of the 1987 Act. The relevant provisions of ss 15 and 17 are as follows:

“15 Diseases of gradual process—employer liable, date of injury etc
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

…
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.
(5)     This section does not apply to an injury to which section 17 applies.”
“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,

(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(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.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”

According to s 15 (1)(a)(ii) of the 1987 Act, a disease injury shall be deemed to have happened at the time the worker makes a claim for compensation with respect to the injury, and compensation is payable by the last employer who last employed the worker in employment to the nature of which the disease was due. As a claim for medical expenses is a claim for “compensation”, this suggests that the deemed date of injury would be
23 October 2020 when the claim was made, meaning that ACI Operations would be liable.
Of course, the case law has confirmed that there can be different deemed dates of injury in respect of diseases, depending on whether an incapacity resulted from the injury[7].
[7] Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31, and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; (2004) 1DDCR 701.
However, s 15 (5) of the 1987 Act specifically excludes the operation of the section in respect of any injury to which s 17 of the 1987 Act applies, as in the present case.
The applicant seeks compensation for replacement digital hearing aids for his accepted work injury sustained on 28 June 1999. The respondent has disputed the claim because the applicant has been exposed to noisy employment since 2009 at his current employer, meaning that it is not the last noisy employer. The medical evidence of Dr Macarthur shows that the applicant’s hearing has deteriorated.
The issue that I need to determine involves statutory interpretation. The principles of statutory interpretation are well established and have been confirmed by the High Court in Project Blue Sky v Australian Broadcasting Authority[8] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[9], and in the Commission in Hesami v Hong Australia Corporation Pty Ltd[10].
[8] [1998] HCA 28; 194 CLR 355.
[9] [2009] HCA 41; 239 CLR 27 (Alcan).
[10] [2011] NSWWCCPD 14.
In order to understand what s 17 of the 1987 Act means, one must interpret the ordinary and grammatical meaning of the text, the language and structure of the legislation, the legal and historical context, and the purpose of the statute in order to come to a reasonable conclusion as to its meaning and application. Reference to the authorities will also be of benefit.
The terminology used in s 17 of the 1987 Act is clear and unambiguous. It does not rely on a true test of causation. It is a deeming provision that identifies which employer is to be held liable for a hearing loss injury. Its operation was discussed in some detail by Sheller JA in Rico Pty Ltd v Road TrafficAuthority[11], where he stated:
[11] (1992) 28 NSWLR 679; 8 NSWCCR 515 (Rico).

“The legislative scheme for awards of compensation for boilermaker’s
deafness proceeds on the following assumptions or fictions:
1. The condition known as ‘boilermaker’s deafness’ is deemed to be a loss of
    hearing which is of such a nature as to be caused by a gradual process (s17(2)).
2. A loss of hearing which is of such a nature as to be caused by a gradual process
    is an injury (s 17(1)).
3. In the language of Barwick CJ, in Commissioner for Railways v Bain [1965]
HCA 5; (1965) 112 CLR 246 at 256-257, the injury is taken to have happened ‘as
    it were, in one blow’. If 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,
    the injury is deemed to have happened at the time when the notice of the injury
    was given; if the worker was not so employed, when he or she gave notice of the
    injury, the injury is deemed to have happened on the last day on which the worker
    was employed in such employment, before he or she gave the notice (s 17(1)(a)).
4. Compensation is payable by the worker’s employer at the time when the notice of
injury was given, if the worker was then employed in employment to the nature of which the injury was due; if the worker was not so employed at the time of the notice, it is payable by the last employer by whom the worker was so employed
(s 17(c)).”[12]
[12] Rico, [689] – [690].

This principle was confirmed by Roche DP in OneSteel Limited v Devine[13] where he stated:
"...the purpose of s 17 is to fix a date to determine the law applicable to calculating the quantum of an entitlement to compensation and to determine by whom that compensation is payable. The fictional basis on which the section proceeds is premised upon an injury being 'a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process'. In that sense, ... the loss, or further loss, of hearing is deemed an 'injury'."[14]
[13] [2012] NSWWCCPD 52 (Devine).
[14] Devine, [41].
It is not necessary for a worker to establish that the employment contributed to his or her hearing loss. In McGowan v Secretary, Department of Education and Communities[15], Roche DP stated:
[15] [2014] NSWWCCPD 51 (McGowan).
“Section 17 is not concerned with true causation of the relevant hearing loss,
but ‘proceeds on a series of fictions or assumptions’ (Civitarese per Beazley JA
(as her Honour then was) (Handley and Sheller JJA agreeing) at 160G). A
claimant does not have to establish that his or her employment with the
named respondent brought about or contributed to the disease (the hearing loss) (Civitarese at 160G). It is concerned to determine the identity of the employer who employed the worker in employment to the nature of which the injury of boilermaker’s deafness was due. That is, the employer who employed the worker in employment whose tendencies, incidents and characteristics could give rise to a risk of industrial deafness.
In the present case, the Arbitrator determined that the respondent was that
employer and that finding has not been challenged. As Mr McGowan was
employed by the respondent at the time he gave notice of the injury, the
injury is deemed to have happened at that time (s 17(1)(i)). In other words,
the injury is taken to have happened ‘as it were, in one blow’ (Commissioner for
Railways v Bain [1965] HCA 5; 112 CLR 246 at 256–257).”[16]
[16] McGowan, [57] – [58].
During submissions, counsel referred me to a number of authorities. These warrant some comment.
Mr Hallion referred to the Presidential decision of Sekulovski as authority for the proposition that a further loss of hearing is not a factor in a claim for hearing aids. There is merit in such a submission.
Mr Sekulovski made a number of small lump sum claims for hearing loss caused by exposure to noise at Bluescope Steel (AIS) Pty Ltd (Bluescope Steel) between 1983 and 1993. The total was only 8.38% binaural hearing loss. There was no dispute that his employer was noisy. He submitted a further claim in 2001, and he was assessed by a Medical Panel in August 2002 as having 1.9% binaural hearing loss.
Mr Sekulovski submitted a claim and the dispute centred on whether the hearing aids were reasonably necessary as a result of his compensable hearing loss. The worker relied upon a report of Dr Tamhane, who assessed 7.1% binaural hearing loss, and the doctor recommended a trial of bilateral digital hearing aids. Bluescope Steel relied up the binding Medical Assessment Certificate (MAC) and it argued that a 1.9% binaural hearing loss did not justify the need for hearing aids.
At first instance, Senior Arbitrator McDonald was satisfied that the provision of hearing aids was reasonably necessary as a result of the worker’s injury, even though the MAC had only assessed 1.9% binaural loss. The decision was confirmed on appeal by Wood DP, because she agreed that the evidence established that the work-related component of the worker’s hearing loss materially contributed to the need for treatment, consistent with Murphy v Allity Management Services Pty Ltd[17]. Further, Dr Tamhane’s opinion regarding the need for hearing aids was not challenged by any medical evidence to the contrary.
[17] [2015] NSWWCCPD 49 (Murphy).
Mr Grant referred me to the decisions of Sukkar No.2, Hay and Fischer, which concerned the application of s 17 of the 1987 Act.
Although Sukkar No.2 primarily focussed on the impact of the 2012 amendments and the issue of aggregation, the Court of Appeal considered the provisions in s 17 of the 1987 Act.
Mr Sukkar made a claim for lump sum compensation from Adonis Electrics Pty Ltd (Adonis) in respect of noise induced hearing loss in 1996. The claim resolved in respect of 12.9% binaural hearing loss. and was formalised by a Registration of Agreement on 29 August 1996. The deemed date of injury was on or shortly before 29 August 1996.
Mr Sukkar made a further claim on Adonis on 19 June 2012 in respect of a further 9% whole person impairment. The deemed date of injury was 19 June 2012. The employer disputed that Mr Sukkar was entitled to make a claim because he had not satisfied the threshold in
s 66(1) of the 1987 Act.
Mr Sukkar filed proceedings in the Commission[18], and the Arbitrator referred two questions of law to Keating J. The President had regard to the decisions of Eraring Energy v Brownlie[19]and Manuel v BOC Ltd[20], where it was held that a claim for a further loss of hearing constituted a separate injury for the purposes of s 17 of the 1987 Act, and he determined that although Mr Sukkar had suffered one pathological condition, namely sensorineural hearing loss, his claim did not arise from the same injury that he sustained in 1996. The injury was deemed to have happened on 19 June 2012, when Mr Sukkar gave notice of his further loss of hearing.
[18] Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59, (Sukkar No.1).
[19] [2008] NSWWCCPD 42.
[20] [2011] NSWWCCPD 20.
The President held that Mr Sukkar had suffered a new injury, or a further loss of hearing, in terms of s 17 of the 1987 Act. This arose from a series of micro traumata between
29 August 1996 and 19 June 2012, and the two injuries could not be aggregated for the purpose of determining whether Mr Sukkar’s claim exceeded the threshold in s 66(1) of the 1987 Act. This meant that Mr Sukkar was not entitled to claim for loss of hearing for his injury on 19 June 2012 because his assessment did not pass the threshold in s 66(1) of the 1987 Act. The worker lodged an appeal.
The Court of Appeal was satisfied that was only one pathology, but s 17 of the 1987 Act deemed a further loss of hearing to be an injury for the purposes of a claim for lump sum compensation. As Mr Sukkar’s claim was for 9% whole person impairment, it did not satisfy the threshold in s 66(1) of the 1987 Act.

The dispute in Hay centred on whether Commonwealth Steel Company Pty Ltd (Commonwealth Steel) was the last noisy employer. Mr Hay ceased work with Commonwealth Steel on 12 March 1993. He also worked for the NSW Rural Fire Service as a volunteer bush fire fighter from 1989 to 1992, during which time he was exposed to noise, and then as a voluntary communication operator until 1997 where he was not exposed to noise.
Mr Hay claimed lump sum compensation from Commonwealth Steel in respect of a further 8.4% binaural hearing loss and for the provision of hearing aids. The deemed date of injury was identified as 12 March 1993, being the last date of employment. Commonwealth Steel disputed that it was the last noisy employer.
At first instance, the Arbitrator determined that Commonwealth Steel was not the last noisy employer because the Rural Fire Service employed Mr Hay in employment to the nature of which his injury was due. The fact that the nature of the employment changed after 1992 was irrelevant. The Arbitrator’s decision was confirmed on appeal.
The facts in Fischer are somewhat similar to the present matter, but there are important differences. Mr Fischer was employed by Transwest Haulage (Transwest) from 1998 to 1992, and he was exposed to noise. In 1994, he made a claim for lump sum compensation for hearing loss and he was paid $4,203.04.
Mr Fischer commenced employment with Endeavour Energy as a plant operator in 2006
and he made a claim for the cost of binaural hearing aids as a result of injury on
22 January 2020 (deemed). No claim was made for lump sum compensation because the assessment of 11.5% binaural hearing loss or 6% whole person impairment provided by his qualified ENT specialist, Dr Payten, was below the threshold in s 66(1) of the 1987 Act.
Mr Fischer claimed that he was exposed to noise at Endeavour Energy and about five years earlier, he noticed a deterioration in his hearing. His qualified ENT specialist, Dr Payten was satisfied that the worker’s employment had the necessary “incidents, characteristics and tendencies to be a real risk of causing noise induced hearing loss”. He recommended the use of hearing aids

Endeavour Energy disputed the claim on the grounds that liability rested with Transwest because the deemed date of injury was determined by s 17 (1)(a)(i) of the 1987 Act, and the relevant date was when Mr Fischer gave notice of injury to Transwest. Transwest also disputed that it was the last nosy employer. Proceedings were filed in the Commission against both employers.
Arbitrator McDonald reviewed the authorities and the meaning of s 17 of the 1987 Act. The Arbitrator had regard Lobley, and the comments of Kirby ACJ regarding the effect of s 17 of the 1987 Act which bear repeating here. His Honour stated:
“It would have been easy for Parliament to have assigned responsibility for hearing loss to the last employer whose employment had actually caused some hearing loss. Instead, Parliament chose a different criterion, namely by assigning liability to the employer, at the time of the notice of injury, to the nature of whose employment the injury was due.
There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.”[21]
[21] Lobley, [55].
Further, Cole JA (Kirby ACJ and Rolfe AJA, agreeing) stated:
“It follows from these authorities (Smith v Mann [1932] HCA 30; (1932) 47 CLR 426;
Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 and
[22] Lobley, [64].
Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32) that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.”[22]
The Arbitrator accepted that the evidence of Mr Fischer and Dr Payten was sufficient to prove that the employment at Endeavour was such as to give rise to a real risk of suffering noise induced hearing loss.
The Arbitrator was satisfied that Endeavour Energy was liable to pay for Mr Fischer’s hearing aids because of the deeming provisions in s 17 of the 1987 Act. Although Mr Fischer was previously compensated for a loss of hearing due to his noisy employment at Transwest, his claim against Endeavour Energy was a separate claim with a separate deemed date of injury, namely 22 January 2020 (deemed). The fact that he had no further entitlement to lump sum compensation was irrelevant because the entitlement to compensation for medical expenses did not depend on the payment of any other compensation arising from a work injury.
All of the above authorities concern claims where a notice of injury has been given to the employer or insurer. In the present matter, the notice of injury was given on 28 June 1999 when a notice of claim was made on the respondent for lump sum compensation. The fact that no claim was made for medical expenses, even though this was supported by
Dr Scoppa, is irrelevant. Claims were made for hearing aids in 2010 and 2016, and the self-insurer paid for these items. Presumably it disregarded the opinion that was provided by
Dr Carroll.
At the telephone conference before me on 15 April 2021, I enquired of the applicant’s solicitor, Mr Bechelli, whether a notice of injury and a claim for hearing aids had been made on ACI Operations, given the contents of the applicant’s statement and the initial report of Dr Macarthur. I was informed that no notice of injury or claim had been made and he had been instructed to proceed against the respondent. Although there was no evidence to corroborate what Mr Bechelli said, I had no reason to doubt him.
In its dispute notices dated 30 September 2020 and 13 November 2020, the self-insurer disputed that the applicant had suffered a further injury due to his employment with the respondent. This is not the nature of the claim that is before the Commission.
Further, the respondent disputed that it was the last noisy employer. Such a position is understandable, given the opinion of Dr Macarthur in his initial report. It is also true that
Dr Macarthur failed to comment on the need for hearing aids.
There seems little doubt that the applicant’s employment at ACI Operations is noisy. This is consistent with the evidence of the applicant and that of Dr Macarthur. Further, his current degree of hearing loss is greater than the agreed loss in 1999.
It is true that the worker bears the onus of proving that he or she has suffered an injury, but the self-insurer paid lump sum compensation in 1999 and it also paid for hearing aids in 2010 and 2016. So presumably the self-insurer was satisfied that the applicant had discharged that onus.

In his report dated 6 April 2021, Dr Macarthur stated that a 14.8% binaural hearing loss that was agreed in 1999 was sufficient to warrant the use of bilateral hearing aids. In 1999,
Dr Scoppa reported that the pure tone audiogram showed bilateral high tone sensorineural hearing loss consistent with industrial deafness and he stated that this was probably caused by the applicant’s employment at the respondent. He did not report any other cause.
It is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for the treatment. This was confirmed by Deputy President Roche DP in Murphy, where he stated:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because 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.
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).”[23]
[23] Murphy, [57] to [58].
When one considers the reports of Dr Scoppa and Dr Macarthur, there seems little doubt that the applicant’s employment at the respondent materially contributed to the need for the hearing aids that were provided in 2010 and 2016.
Had the applicant served a notice of injury and made a claim for compensation on ACI Operations, then in accordance with s 17(1)(a)(i) and s 17(1)(c)(i) of the 1987 Act, the injury would be deemed to have happened when the notice was given to ACI Operations, and it would be liable to pay for hearing aids, even if the applicant was not entitled to receive lump sum compensation due to the threshold issue caused by s 66(1) of the 1987 Act.
Section 17 of the 1987 Act specifically refers to the giving of a notice of “injury”, rather than a “claim” for compensation, and this establishes when the injury is deemed to have happened. Section 17(3) of the 1987 Act also provides that the compensation is payable by an employer as referred to in s 17(1)(c) of the 1987 Act, even if the worker commences employment with another noisy employer before he or she has claimed or received compensation.
In this matter, the only notice of injury that was made on the respondent was that on
28 June 1999 (deemed). It is true that notices of claim for hearing aids were made in September 2020 and October 2020, but they were not in respect of a separate injury. They concerned claims for hearing aids that were required as a result of the injury that was deemed to have occurred on 28 June 1999. The applicant merely seeks replacement hearing aids.

In the circumstances, I am satisfied that the applicant sustained injury in the form of sensorineural hearing loss on 28 June 1999 (deemed), and the respondent was the last noisy employer who employed the applicant in an employment to the nature of which his injury was due in accordance with s 17(1)(a)(i) of the 1987 Act.

Is the proposed treatment reasonably necessary as a result of the applicant’s injury at the respondent and is the respondent liable for the payment of medical expenses?

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 the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[24], Burke CCJ stated:
“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.”[25]
[24] (1986) 2 NSWCCR 32 (Rose).
[25] Rose, [42].

Further, 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.

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.”[26]

[26] Rose, [47].

His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[27] and stated:

“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”[28]
[27](1997) 14 NSWCCR 233 (Bartolo).
[28] Bartolo, [238].
In Diab v NRMA Ltd[29], Deputy President Roche questioned this approach and cited Rose with approval. He provided a summary of the principles as follows:
[29] [2014] NSWWCCPD 72 (Diab).

“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 (see [76] above), 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.
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’”.[30]

[30] Diab, [88] to [90].

Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case, applying the common-sense evaluation of the causal chain as discussed by Kirby J in Kooragang Cement Pty Ltd v Bates[31].
[31] (1994) 35 NSWLR 452; 10 NSWCCR 796, [463].

The medical evidence of Drs Scoppa and Macarthur supports the need for digital hearing aids as a consequence of the applicant’s accepted injury on 28 June 1999 (deemed). There is no evidence to the contrary.
The provision of hearing aids is an appropriate, accepted and effective form of treatment for industrial deafness, and it comes at a minimal cost. Hearing aids have the potential of improving the applicant’s quality of life and there is really no alternative non-invasive treatment. This satisfies the relevant factors discussed in Rose and Diab.
The applicant has been using hearing aids, but his statement is silent as to the benefits that he has achieved with their use. Nevertheless, Dr Macarthur reported that the applicant had worn hearing aids in recent years, and he had found them to be beneficial, even in the presence of background noise.
In my opinion, the fact that technically advanced hearing aids have been recommended is irrelevant. If that were the case, then injured workers requiring revisionary procedures, such as hip or knee replacements, would not be able to be provided with more advanced prostheses. This would be untenable.
In the circumstances, I am satisfied that the provision of bilateral digital hearing aids is reasonably necessary as a result of the injury sustained by the applicant on 28 June 1999 (deemed), and that the respondent is liable to pay for the supply and fitting of bilateral digital hearing aids.

FINDINGS

The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with respondent on 28 June 1999 (deemed).
The parties resolved a claim for lump sum compensation in respect of 14.87% binaural hearing loss on 21 October 1999 and a Registration of Agreement was registered on
12 November 1999.
The respondent paid for hearing aids when claims were made by the applicant in 2010 and 2016.
The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the 1987 Act when he gave notice of injury to the respondent on 28 June 1999 (deemed).
The provision of bilateral digital hearing aids is reasonably necessary as a consequence of the applicant’s injury.

ORDERS

The respondent is to pay medical expenses in respect of the supply and fitting of bilateral digital hearing aids on production of accounts and/or receipts pursuant to s 60 of the 1987 Act.

[2021] NSWPIC 124

18 May 2021