Victor Clifford and Military Rehabilitation and Compensation Commission
[2015] AATA 86
•19 February 2015
[2015] AATA 86
Division Veterans' Appeals Division File Number
2014/2933
Re
Victor Clifford
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 19 February 2015 Place Perth The decision under review is affirmed.
...(Sgd) S D Hotop.............
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant commenced National Service in Australian Army in July 1966 – applicant medically discharged from National Service in September 1966 by reason of bilateral hearing loss – applicant claimed compensation for hearing loss in September 2012 – respondent accepted liability to pay compensation to applicant for bilateral hearing loss sustained in September 1966 – applicant claimed permanent impairment compensation in respect of bilateral hearing loss – Tribunal not satisfied that applicant’s bilateral hearing loss causally related to National Service – applicant not entitled to permanent impairment compensation for bilateral hearing loss – decision under review affirmed
LEGISLATION
Commonwealth Employees' Compensation Act 1930 (Cth), s 4(1), s 9(1), s 10(1) and s 12
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 14(1), s 24, s 123A, s 124 and s 147(1)
CASES
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President S D Hotop
19 February 2015
Introduction
Victor Clifford (“the applicant”) has applied to the Tribunal for review of a “reviewable decision”, dated 27 May 2014, made by a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). That reviewable decision affirmed a determination made under the SRC Act on 2 July 2013 that the applicant was not entitled to compensation for permanent impairment in respect of “bilateral hearing loss”.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T24, pp 1–74) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the oral evidence of the applicant and of Professor Terence McManus.
The Factual Background
The following background facts are not in dispute and are found by the Tribunal on the basis of the T Documents.
The applicant, who was born in December 1945, was conscripted for National Service for two years in the Australian Army commencing on 13 July 1966. He had been medically examined for that purpose on 19 April 1966 and his medical classification was “A”. (T3, pp 5–7)
On 3 August 1966, however, the applicant’s medical classification was changed from “Fit N/S” to “Unfit N/S” by a Medical Board and it was noted that he was “unfit for N/S training under present medical standards”. (T3, p 11)
On 29 August 1966 the applicant was discharged from the Australian Army on the ground that he was “Medically unfit for National Service training”, the discharge to take effect on 5 September 1966. (T3, p 13)
By letter dated 4 June 1971, the applicant informed the Department of Defence that he was presently “in the process of taking out a large life assurance policy” and that “the insurance company wish to see the official medical reason for [his] discharge”, and he requested that a copy of his “discharge medical” be sent to him. (T3, p 16)
In response to the abovementioned letter of 4 June 1971, the Department of Defence provided to the applicant a “Medical Summary” document, dated 10 June 1971, which stated as follows:
“1. Central Medical Record of above ex-member shows that he suffered no significant disability during service.
2.He was discharged as ‘unfit present standards National Service’, reason being Bilateral hearing loss, right greater than left. This hearing loss was mainly in the high frequencies.” (T3, p 18)
By letter dated 11 September 2012, the applicant wrote to the Department of Veterans’ Affairs (“DVA”) as follows:
“ I am enquiring as to how to apply for a pension or part pension. I have set out my circumstances below.
I was conscripted in 1966. Prior to my conscription I was employed by the then Postmaster Generals Department as a Postal Clerk. I passed a full medical to become a permanent officer of the PMG.
I then passed my medical to be conscripted into the Army.
Whilst in the Army I applied for Officer Training and part of the selection process was another full medical. This medical revealed a hearing deficiency which resulted in my discharge from the Army for being medically unfit.
My contention is the hearing loss must have been as a result of my Army service as I had already passed two medical examinations in the previous five years.
I would appreciate your advice regarding the above enquiry and I have set out all my personal details below.
…” (T7)
On 25 September 2012 the applicant lodged with the DVA a completed “Claim for Rehabilitation and Compensation” form, signed by him and dated 20 September 2012, whereby he claimed compensation under the SRC Act for “loss of hearing” said to have been first noticed by him in September 1966 in the course of his National Service at Puckapunyal, Victoria. In that form the applicant indicated that, inter alia, he did not report his loss of hearing to his supervisor, and, in response to each of the questions, “What task was being performed when you sustained the injury?” and “How did the injury occur?”, he indicated: “N/A”. He did not respond to the question, “What aspects of your employment do you think contributed to your disease or illness?”. (T9)
On 22 April 2013 a delegate of the respondent made a determination accepting liability under the SRC Act to pay compensation to the applicant in respect of “Bilateral Hearing Loss”, the deemed date of that injury being 5 September 1966 (T12). The delegate separately recorded the following explanatory comments regarding that determination:
“– Member enlisted under National Service on 13 July 1966. He was passed Fit To Enlist Med Cat 1.
– The member was discharged Medically Unfit on 5 September 1966 due to Bilateral Hearing Loss.
There are no Service Medical Documents available for this memeber [sic], however, in the absence of such and by virtue of being Med Cat 1 upon enlistment, I am of the belief that it is more than likely that the member’s Hearing Loss condition had arisen due to the nature of his military service. I have used his date of discharge as the date of first impairment.
I am satisfied that the member’s condition arose due to the nature of his Commonwealth employment.” (T13, p 38)
By letter (undated), the applicant wrote to the DVA as follows:
“ I am writing to appeal the compensation offered regarding the above file claim.
It was determined on 22-4-13 that my hearing loss was due to my military service in 1966.
I was offered free hearing aids and hearing tests as compensation, this is no compensation to me as I already have new hearing aids and these are supplied free as I am on the old age pension.
I feel a more just compensation in light of the above would be a monetary one, especially as I have struggled with this disability most of my life.” (T14)
Following a request by the DVA to the Department of Defence for the provision of “all audiograms while in service” relating to the applicant, an Executive Officer of the Department of Defence, by email sent on 21 June 2013, responded:
“ … DVA have previously requested and have been supplied the client’s medical documents … There are no audiograms contained within the former member’s medical records. …” (T16)
By letter dated 2 July 2013, a delegate of the respondent notified the applicant as follows:
“ I refer to your application for a lump sum payment for permanent impairment for a Bilateral Hearing Loss condition.
When considering an application for a lump sum payment for a permanent impairment, the date of permanence is significant. The date of permanence determines which Compensation Act applies to your impairment.
Departmental policy regarding deterioration of noise-induced hearing loss is based on a report by Professor Black. According to Professor Black, noise trauma is regarded as occurring only at the time of exposure to severe noise. Once the individual is removed from the noise (ie discharges [sic] from the services), further deterioration does not occur. Thus, any loss occurring after discharge is not deemed to be compensable.
Therefore, for hearing loss claims the date of permanence is either the last date of exposure on service or the date of discharge. As you were medically discharged from National Service in 1966, I must use your discharge date of 5 September 1966 for your date of permanence.
Your claim must therefore be assessed in accordance with the provisions of the Commonwealth Employees’ Compensation Act 1930.
I have examined the medical evidence on your compensation file. The evidence within the documentation did indicate that your hearing loss was found to have been severe enough for you to be medically discharged from National Service.
Unfortunately there are no audiograms to refer to. We require an audiogram to be able to calculate your hearing loss.
This office had previously forwarded a request to Defence asking them to supply your medical documents.
On 21 June 2013, Defence informed us that there are no audiograms contained within the former member’s medical records.
Therefore, I have determined that no payment can be made under the provisions of the Commonwealth Employees’ Compensation Act 1930 for your accepted Bilateral Hearing Loss condition as your hearing level loss could not be established.
…” (original emphasis) (T17)
By letter dated 19 August 2013 to the respondent, the applicant requested “a new review of [his] claim” and provided the following statement in support of that request:
“ I offer a brief summary to support my appeal against the decision of the Military Rehabilitation Commission.
I was conscripted into the army on the 14th July 1966. I was passed as medically fit. During my training I applied for officer training. Part of the selection process entailed another medical examination. I failed this examination due to hearing loss and was promptly discharged.
On the 11.9.2012 I applied to Veteran Affairs seeking compensation. On the 22.4.2013 I received written notification under the Safety and Compensation Act, that liability had been accepted and that compensation would be awarded.
I was offered free tests and hearing aids. I appealed this decision as I already have free hearing aids, as I am on the pension. I stated I believed a monetary compensation was warranted.
On the 2.7.2013 I received written notification stating that monetary compensation needed audiogram results to ascertain the amount of compensation payable. The letter also stated this couldn’t be done in my case because the Army has lost my audiogram records.
Part of the letter from MRCC quoted Professor Black, University of QLD, stating that hearing loss only occurs at the time of severe noise. Once the Individual is removed from the source further deterioration does not occur.
In light of the above, my contention is that a present day audiogram should be relevant to the level of hearing loss in 1966. In particular in my case as I spent the rest of my employment working in an office.
As such compensation could be awarded at my present level of hearing loss. Adjustment could be made for a slight decline in hearing after the age of 50 as per National Acoustic Laboratory document 1988. I quote from Professor Black’s letter (copy attached).
I would like to see some justice here. First I was conscripted against my wishes. Then when I decided to make a success of my situation I was discharged. Now when I decide to seek compensation I am being penalised, because even though liability is admitted, compensation can’t be awarded because the Army has lost my audiogram records.” [sic] (T18)
On 19 March 2014 Professor Terence McManus, Consultant Otolaryngologist, at the request of the respondent, examined the applicant and subsequently prepared a report dated 28 March 2014 (set out in paragraph 26 below).
On 27 May 2014 a delegate of the respondent made a reviewable decision under s 62 of the SRC Act affirming the abovementioned determination of 2 July 2013 that no permanent impairment compensation is payable to the applicant. The delegate set out the reasons for that reviewable decision as follows:
“ Consideration
I have carefully considered the available medical evidence on file in undertaking my reconsideration.
I am satisfied that you suffer from a hearing loss condition. Given that you were discharged as a result of the condition I am also satisfied that the condition was most probably present as at the date of discharge on 5 September 1966 (albeit to a lesser degree).
I am satisfied that the initial delegate correctly identified the date of permanency of your condition as 5 September 1966. The reason why the date of permanency is important in determining your entitlement to compensation for permanent impairment arises from the legislation which covered workers’ compensation for Defence Force members prior to the commencement of the SRCA. That legislation was the Commonwealth Employees Compensation Act 1930 (the 1930 Act) and the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
The 1930 Act and the 1971 Act, like the SRCA provided for compensation for permanent impairment for certain injuries. However, unlike the SRCA, those Acts provide for different amounts of compensation than the SRCA.
As your injury was sustained prior to the commencement of the SRCA in 1988, section 124 of the SRCA applies. Section 124(1A) operates so that if you are entitled to compensation under the 1930 Act, you will also be entitled to compensation under the provisions of the SRCA. However, you will not be entitled to compensation under the SRCA in respect of an injury suffered before the commencing day of the SRCA (ie before 1 December 1988) if compensation was not payable under the provisions of the applicable Act, in your case the 1930 Act.
Under section 12(1) of the 1930 Act, compensation is payable whereby [sic] an employee sustains, by accident arising out of or in the course of employment, an injury specified in Schedule 3 of the Act. Schedule 3 includes hearing loss injuries.
Therefore, before determining whether any amount of compensation is payable under section 12, I must first be satisfied that your hearing loss injury arose out of or in the course of your military employment between 13 July 1966 and 19 [sic] September 1966. This is the case even when your injury has previously been dealt with as being compensable under the 1930 Act.
The Federal Court explained this in Telstra Corporation v Hannaford [2006] FCAFC 87 at [53] [sic]:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.
Having now received the report of Professor McManus, a specialist otolaryngologist, I am not satisfied that your hearing loss condition arose out of or in the course of your military employment. I note in particular that Professor McManus considered it unlikely that your limited exposure to gunfire would have contributed to any hearing loss which you now suffer. He also reported that the pattern of hearing loss which you have experienced is not indicative of noise-induced hearing impairment.
As I am not satisfied that your hearing loss is due to your military service, I have determined that no compensation is payable under section 12 of the 1930 Act.
As such, I have affirmed the decision under review.
…” (T24, pp 71–72)
The Applicant’s Evidence
The applicant confirmed that the contents of his letter of 11 September 2012 to the DVA (set out in paragraph 9 above), and of his statement provided to the respondent on 19 August 2013 (set out in paragraph 15 above), are true and correct.
The applicant reiterated that he had had two medical examinations before he commenced National Service – one for the purpose of his employment by the Postmaster-General’s Department (“PMG”) in 1961 when he was 15 years of age, the other for the purpose of his enlistment for National Service in 1966 – and that he had passed both of those examinations. He said that he had a “pretty vague” recollection of those medical examinations but added that the PMG examination “would have been pretty thorough” because in those days morse code was being used for telegrams and “hearing was pretty important”. He said that, after he commenced National Service, he applied for officer training and was required to undergo a further medical examination for that purpose and that that medical examination found that he “could not hear”. He said that that medical examination included an audiogram. He added that, as far as he could recall, his enlistment medical examination did not include an audiogram but that his PMG medical examination may have included an audiogram, although he could not recall that it did.
The applicant said that, prior to his commencing National Service, he was not aware that he had any hearing problems and that “no one around him” at that time was aware of it either, but that “everyone is certainly aware of it nowadays”.
As regards a relationship between his National Service and his hearing loss, the applicant said that he was only there for a couple of months and there was “the firing range and things like that”. He added:
“ Whether it was the corporal continually shouting at me that made me deaf, I do not know”.
He said that when he was told, after the officer training medical examination, that he “could not hear”, he did not dispute that although he was not aware of any hearing problem and had been “getting by OK”. He added that when he was told that he was no longer wanted in the Army because of his hearing loss, “it was like winning Lotto” and he was happy with that outcome and “did not contest it in any way”.
Asked by the Tribunal whether he was exposed to loud noise during his National Service, the applicant said that there was “only the firing range and that was about it”. He said that they fired “SLRs shoulder-to-shoulder” and that they did not have ear muffs but “only a little bit of waxy stuff that you stuck in your ear”. He said that he recalled that, after being on the rifle range, his hearing was “worse” but that that seemed to be temporary because the next day he would be “back to hearing fairly normal”. He added that he had assumed that everyone else had the same experience and had “the same problem after those episodes”.
The applicant confirmed that he had had an audiogram in March 2012 for the purpose of obtaining hearing aids. He said that he had been having hearing problems before then but waited until he was eligible for the age pension before arranging to obtain hearing aids because he could then obtain them free of charge instead of them costing him “thousands of dollars”.
The applicant disputed certain aspects of Professor McManus’ report of 28 March 2014 (set out in paragraph 26 below), namely, that Professor McManus had noted that he had no “giddiness or headaches”, no “trouble with TV/radio”, and no “trouble with telephone”. The applicant said that he had told Professor McManus that he was “suffering giddiness and a bit of vertigo” and that he has the volume of the TV “right up even with the hearing aids” and that, if he is not in the same room as the telephone, he does not hear it ring. He referred to the report of Ms Vesna Maric, Audiologist, dated 6 March 2014 (T22), in which it is noted that the applicant “described having rotational vertigo attacks lasting for several hours over the years”, and he said that that was an accurate reference to the history which he gave to her.
The Evidence of Professor Terence McManus
Professor McManus, Consultant Otolaryngologist, confirmed that he had examined the applicant and had prepared a report, dated 28 March 2014, in relation to that examination. He also confirmed that the contents of that report are true and correct.
Professor McManus’ report of 28 March 2014, which is addressed to the DVA, states as follows:
“ …
Thank you for referring Mr Victor Ivan Clifford for ENT assessment. Based on Mr Clifford’s medical condition as specified in your referral, I confirm that my specialty is appropriate for the conduct of this assessment.
Having reviewed the available file data and the comprehensive audiology test results, interviewed and examined Mr Clifford, I submit a detailed medical report in answer to your request.
I obtained the following information from my interview with Mr Clifford (unless otherwise specified).
ASSESSMENT DETAILS:
Assessment Date: 19 March 2014
Name of Assessor: Professor T C McManus
Audiologist: Vesna Maric, Medical Audiology Services
Type of Assessment: Ear, Nose and Throat
Previous Assessment: Nil records provided
BACKGROUND:
Country of Birth: Australia
Language Spoken: English
Previous Reports: Nil
MEDICAL EVALUATION:
Previous Claim for Deafness:
Nil.
Noise – Apart from Work:
55 days National Service training in 1966.
Firearms Exposure:
Approximately three or four episodes on the firing range as a National Service trainee.
Head Injury:
Nil.
Ear Disease or Injury:
Nil.
Medical/Surgical Treatment:
Mr Clifford reported having had a hernia repaired.
Other Previous Illnesses:
Nil.
Family History:
Not applicable.
Employment History:
Mr Clifford reported that he was called up for National Service duties in 1966, he spent 55 days in the Defence Forces before being medically discharged as unfit due to poor hearing.
Worksite Noise Levels:
Unknown.
Screening Audiometry:
No records provided.
Medical History including Mechanism of Injury Alleged & Subsequent Progress:
Mr Clifford reported that after entering the Australian Defence Forces for his National Service training, he spent 55 days before being medically discharged as unfit due to poor hearing. On questioning him regarding his exposure to gunfire, he advised that approximately three to four weeks after commencing National Service training, he was exposed to rifle fire on the firing range on three or four occasions.
Deafness First Noted:
Mr Clifford reported that he applied for officer training and a more detailed medical examination found he had significant hearing impairment and he was considered unfit for further military service. Mr Clifford reported he was unaware that he had a hearing impairment which suggested that his hearing impairment was likely present at the time of his enlistment. The files that were provided showed no evidence of his medical examination on enlistment. In 1966, it would have been very unlikely that a routine pre-enlistment medical examination would have had formal hearing tests carried out. In my opinion, I consider it is likely the hearing loss identified on medical examination for officer training was probably present when he underwent routine medical assessment for National Service training.
Ear Pain/Itchiness/Discharge:
Nil.
Ear Infections:
Nil.
Tinnitus:
Nil.
Giddiness or Headaches:
Nil.
Ototoxic Drugs:
Nil.
Noxious Fumes:
Nil.
Other ENT symptoms:
Nil.
Present Medication:
Somac for hiatus hernia with reflux.
Trouble with TV/Radio:
Nil.
Trouble with Telephone:
Nil.
Smoking/Alcohol:
Nil.
Alcohol – social drinking only.
Other Concurrent Illnesses:
Nil.
Current Symptoms:
Hearing impairment.
Clinical Examination:
Revealed no abnormality on microscopic inspection of his ear.
Investigations:
Audiometry – Performed according to Australian Standard AS 1269
Performed by Vesna Maric Date: 6 March 2014 Comments: Mild-to-severe high frequency sloping sensorineural hearing loss, worse on the right ear Hz 500 1000 1500 2000 3000 4000 6000 8000 Left 30 25 30 40 80 85 80 75 Right 35 80 75 70 70 75 70 60 ASSESSMENT AND SUMMARY:
Diagnosis:
Sensorineural impairment.
Causation:
Idiopathic.
RECOMMENDATION:
Treatment:
No medical or surgical treatment will be of value for his sensorineural hearing impairment. He currently uses bilateral hearing aids.
Fitness for Work:
Mr Clifford has retired.
COMMENT:
In response to the specific questions set out in your correspondence dated 20 February 2014, I advise:
SCHEDULE OF QUESTONS
VICTOR CLIFFORD File Number: CL10079-01
Please note:Your answers should be on the balance of probability (not possibility) and be based on current mainstream medical opinion and medical/scientific research.
To help avoid the necessity for additional investigation it is important that all relevant questions are answered. Please note that merely serving in the ADF at the time of onset of a disease or an injury does not constitute Commonwealth liability.
…
1.(a) From what condition(s) affecting the ears and/or hearing does the claimant suffer?
Bilateral high-tone sensorineural hearing impairment.
(b)Does the claimant have a condition listed under Table 7.2 of the Permanent Impairment Guide (such as tinnitus, otalgia, otorrhoea or vertigo etc)? If so, what is the percentage whole person impairment?
In accordance with Table 7.2 Miscellaneous ear, nose and throat disorders, his whole person impairment is 0%.
(c)Does the claimant have abnormally poor speech discrimination? (If the answer is YES then the NAL 1991 procedure is to be used to determine the PLH).
No, Mr Clifford does not have abnormally poor speech discrimination.
2.Answer for all conditions and in percentages (0, 1-9, 10-20, 21-50, >50%). Is the condition (s)
(a) caused by the claimant’s Commonwealth employment?
In my opinion, his hearing impairment is more likely to be idiopathic and unrelated to his 55-day military service.
(b) aggravated by the claimant’s Commonwealth employment?
In my opinion, his hearing impairment has not been aggravated by his Commonwealth employment.
(c) unrelated to the claimant’s Commonwealth employment?
I consider his hearing impairment is unrelated to Mr Clifford’s Commonwealth employment.
3.If the condition(s) is related to the claimant’s Commonwealth employment, what was the event, occurrence or employment factor that caused or aggravated the condition(s)? (The factor could be a characteristic of any work the employee performed for the Australian government or the conditions under which the work was performed).
I do not believe his condition is related to his Commonwealth employment.
4. (a) Do you consider the condition(s) to be permanent?
Yes, I consider the condition to be permanent.
(b) Is any form of medical or surgical treatment indicated?
No, there is no form of medical or surgical treatment.
(d)[sic]Do you consider it likely that the impairment associated with each condition is permanent and static?
Yes, I consider it is likely that the impairment associated with each condition is permanent and static.
5.If the loss of hearing is only partly related to Commonwealth employment, can these factors be separated?
See above.
6. If you answered YES to Q5,
(a)On what basis can the increases in hearing level [sic] due to each factor be distinguished from one another?
(b)Can you determine the approximate times or periods of time at which the increases in hearing level [sic] due to each factor occurred?
(c)If you answered YES to Q6 (b), what were those times?
(d)If you answered NO to Q6(b), is it possible to determine the order in time in which the increases in hearing level [sic] produced by each factor occurred and, if so, what was that order?
Not applicable.
7.(a) What is the total percentage loss of hearing?
Total percentage loss of hearing is 33.8%.
(b)What is the percentage loss of hearing attributable to Commonwealth employment?
0%.
…”(T23, pp 60–67)
In an addendum to his report, Professor McManus provided an assessment of the applicant’s “whole person impairment” under Table 7.1 in the Guide to the Assessment of the Degree of Permanent Impairment and commented further as follows:
“EAR, NOSE AND THROAT DISORDERS
TABLE 7.1
Hearing
(Percentage Whole Person Impairment)
Hearing defects are assessed in accordance with current procedures from the Australian National Acoustic Laboratories.
Once the binaural percentage loss of hearing has been calculated, it is then converted to a whole person impairment value.
The calculation for converting the percentage loss of hearing to a whole person percentage is:
(Percentage Loss of Hearing)
2
In accordance with the NAL report 118, I calculated his binaural hearing impairment to be 33.8%. This gives a 16.9% whole-person impairment.
In my opinion, the hearing loss demonstrated with detailed audiometry carried out by Vesna Maric has indicated a significant bilateral high-tone sensorineural hearing impairment. I note that Mr Clifford was discharged from his National Service training after 55 days when he was discovered to have hearing impairment. Unfortunately, the files provided have given no details of the hearing levels at the time he was discharged nor at the time of his enlistment but was only identified when he applied for officer training. The current pattern of hearing impairment is consistent with presbycusis on top of a pre-existing idiopathic high-tone sensorineural hearing loss. The pattern is not indicative of noise-induced hearing impairment and I do not believe the hearing loss that resulted in him being discharged from National Service Training resulted from his very limited exposure to gunfire on the rifle range.” (T23, p 68)
In his oral evidence Professor McManus confirmed that the history of the applicant’s symptoms set out in his report accorded with the contents of the notes which he took during his examination of the applicant. Asked to assume that the applicant had given a history of, in particular, experiencing giddiness, and having trouble with the TV/radio and the telephone, Professor McManus said that that would not cause him to alter his opinion regarding the cause of the applicant’s hearing loss.
Professor McManus elaborated on his opinion that the pattern of the applicant’s hearing loss is “not indicative of noise-induced hearing impairment”. He referred, in particular, to the very substantial discrepancy between the hearing loss in the applicant’s right ear and the hearing loss in his left ear at 1 kilohertz and he reiterated that that discrepancy is not indicative of noise-induced hearing loss and suggests that his hearing loss is idiopathic.
Professor McManus was referred to the “Medical Summary” document, dated 10 June 1971, provided by the Department of Defence, which referred to the reason for the applicant’s medical discharge as “bilateral hearing loss, right greater than left” and added that this hearing loss was “mainly in the high frequencies” (see paragraph 8 above). Professor McManus said that the fact that the applicant’s hearing loss was then in the high frequencies was not indicative of noise-induced hearing loss. He also noted that, in the case of exposure to the noise of rifle fire, any hearing loss caused by such exposure would, in the case of a rifle being discharged by a right-handed person (as in the applicant’s case), be expected to occur in the left ear rather than the right ear, whereas the applicant’s hearing loss was recorded as “right greater than left”.
As regards the applicant’s evidence that, when he worked in the PMG’s Department in the early 1960s, morse code was being used for telegrams, Professor McManus said that morse code involved noise in the lower frequencies rather than the higher frequencies.
Professor McManus opined that the substantial “asymmetry” between the hearing loss in the applicant’s right ear and the hearing loss in his left ear at 1 kilohertz is idiopathic, and that, in addition, there is now the factor of presbycusis (age-related hearing loss) which is contributing to his overall hearing loss.
The Relevant Legislation
Pursuant to ss 14(1) and 147(1) of the SRC Act, the respondent is liable to pay compensation in accordance with that Act “in respect of an injury suffered by [the applicant] if the injury results in death, incapacity for work, or impairment”. Where such an injury results in a permanent impairment, compensation is payable, in accordance with s 24 of the SRC Act, in respect of that injury.
Part X of the SRC Act contains transitional provisions dealing with the application of that Act to injuries suffered before the date of commencement of that Act (namely, 1 December 1988), including the following relevant provisions:
“ 123A Injuries suffered before the commencing day
A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.”
“ 124 Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act – under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case – under the 1971 Act as in force when the impairment or death occurred.
…”
The phrase “commencing day” is defined in s 123 to mean “the day on which this Part commences” – namely, 1 December 1988. The phrases “the 1912 Act”, “the 1930 Act” and “the 1971 Act” are defined in s 4(1) as follows:
“ the 1912 Act means the Commonwealth Workmen’s Compensation Act 1912.
the 1930 Act means the Commonwealth Employees’ Compensation Act 1930.
the 1971 Act means the Compensation (Commonwealth Government Employees) Act 1971.”
The Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”) is relevant in this case. In s 4(1) of that Act the following relevant definitions appeared:
“ ‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;”
“ ‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;”
“ ‘employee’ means –
…
(d) a member of the Defence Force to and in relation to whom this Act applies;”.
Sections 9 and 10 relevantly provided:
“9(1) If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.”
“10(1) Where –
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b)the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.”
Section 12 relevantly provided:
“12(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.
…
(5) Where an employee sustains an injury which causes partial and permanent loss of the efficient use of a part of the body specified in the Third Schedule to this Act in and for the purposes of his employment at the date of the injury, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of that part as is equal to the percentage of the diminution of the efficient use of that part.
…”
The injuries specified in the Third Schedule to the 1930 Act included “Loss of hearing”.
The Issues
Notwithstanding that the respondent, on 22 April 2013, determined that it was liable, under the SRC Act, to pay compensation to the applicant in respect of “Bilateral Hearing Loss” taken to have been sustained on 5 September 1966 (see paragraph 11 above), the respondent, relying on Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, submitted that it was open to the Tribunal in this proceeding (which involved a claim by the applicant for permanent impairment compensation in respect of his accepted injury, namely, “Bilateral Hearing Loss”) to consider whether that condition is, or is not, a compensable “injury” for the purposes of the SRC Act, and that the Tribunal, on the basis of the medical evidence before it – in particular, the report of Professor McManus, dated 28 March 2014, and his oral evidence – should determine that it is not a compensable “injury” for the purposes of the SRC Act.
The Tribunal accepts the respondent’s submission that, on the authority of Telstra Corporation Limited v Hannaford (above), it is open to the Tribunal to consider and determine in this proceeding whether the applicant’s bilateral hearing loss condition is, or is not, a compensable “injury” for the purposes of the SRC Act.
Accordingly, the primary issue for the Tribunal’s determination is whether the respondent is liable, pursuant to ss 14(1) and 147(1) of the SRC Act, to pay compensation, in accordance with that Act, to the applicant in respect of his bilateral hearing loss condition. If that issue is determined in the affirmative, a further issue will arise, namely, whether the respondent is liable to pay permanent impairment compensation, in accordance with s 24 of the SRC Act, to the applicant in respect of his bilateral hearing loss condition. Pursuant to s 124 of the SRC Act, consideration of the relevant provisions of the 1930 Act will be required for the purpose of determining the first, or both, of the abovementioned issues (as the case may be).
The Applicant’s Contentions
The applicant’s Contentions are set out in his reply to the respondent’s Statement of Facts, Issues and Contentions, which he filed on 24 October 2014, as follows:
“1. Professor McManus states – In his opinion my hearing impairment was a pre-existing condition of unknown cause and is 34% loss.
2.I contend that Professor McManus didn’t examine me 48 years ago but two other entirely independent doctors, representing 2 unrelated organisations, (PMG and Army) did and neither of them detected any hearing deficiency.
3.Professor McManus further states that I would have been unaware of the impairment. Not only was I unaware of it but my family, friends, workmates and the two aforementioned doctors were also unaware of it; and this is a 34% loss of hearing. Not a slight loss.
4.If I had the slightest of indication of any medical problem back then I would have used it to avoid conscription, because in common with most young men at the time I didn’t want to go in the Army and go to Vietnam.
5.I can offer no explanation as to how my hearing was damaged by the Army Service but all the above facts support my conviction that my hearing was normal before conscription.
6.The letter on 2/7/13 (T17 P43-44) did not deny liability, but stated that compensation could not be determined because of lack of audiogram records. Liability had been admitted under the Rehabilitation Act [sic].”
Consideration
It is common ground that the applicant has suffered bilateral hearing loss. On the basis of the report of Professor McManus, dated 28 March 2014, the Tribunal is satisfied, and finds, that the applicant has suffered bilateral high-frequency sensorineural hearing loss, worse in the right ear (“the hearing loss condition”).
On the basis of the applicant’s service records which are in evidence – in particular, the record of the Medical Board Reclassification of the applicant’s medical classification from “Fit N/S” to “Unfit N/S”, dated 3 August 1966, referred to in paragraph 5 above, and the Department of Defence “Medical Summary” document, dated 10 June 1971, referred to in paragraph 8 above – the Tribunal is satisfied that the applicant was suffering from the hearing loss condition as at 3 August 1966. The Tribunal notes that that date was three weeks after he commenced National Service training on 13 July 1966.
It is, however, not apparent from the applicant’s service records (T3 – being the earliest contemporaneous documents which are in evidence) when he first sustained the hearing loss condition.
The applicant points to the (undisputed) facts that he passed a medical examination in 1961 for the purpose of employment by the PMG’s Department, and that he passed a medical examination on 19 April 1966 (being classified “A” and “Fit N/S”) for the purpose of entry into National Service, and submits, on the basis of those medical examinations, that he was not suffering from hearing loss prior to his entry into National Service. He further submits that, given that it was subsequently demonstrated during his National Service training that he was suffering from the hearing loss condition, and given that there is no evidence of any non-service factors which may have caused that condition, it must have been something which occurred in the course of his National Service training which caused him to sustain that condition. The applicant frankly acknowledged, however, that he could not provide an explanation as to what aspects of his National Service training might have caused him to sustain the hearing loss condition (see para 5 of his Contentions set out in paragraph 38 above), although in his oral evidence he referred (in the Tribunal’s opinion, without real conviction) to his being exposed to the noise of rifle fire on the rifle range and to “the corporal continually shouting at [him]”.
Having regard to the evidence before it, the Tribunal is not satisfied that the applicant was not suffering from the hearing loss condition prior to his entry into National Service. As regards the two abovementioned medical examinations which the applicant passed prior to his entry into National Service, there is no evidence that an audiogram was performed in either of those examinations and, that being the case, the Tribunal is not satisfied that either of those medical examinations was sufficiently sophisticated or thorough as to detect high frequency hearing loss. In the Tribunal’s opinion, the fact that the applicant passed those medical examinations goes no further than to support the proposition, as regards his hearing capacity, that he was not then suffering from significant hearing loss affecting the lower frequencies.
The only aspects of the applicant’s National Service training suggested by the applicant as possible causes of his sustaining the hearing loss conditions involved exposure to noise, namely, the noise of rifle fire and the noise of the corporal shouting at him. The Tribunal, however, notes Professor McManus’ opinion evidence that the pattern of the applicant’s hearing loss is not indicative of noise-induced hearing loss but that it is “consistent with presbycusis on top of a pre-existing idiopathic high-tone sensorineural hearing loss”. The Tribunal accepts Professor McManus’ opinion evidence.
On the basis of Professor McManus’ report of 28 March 2014 and his oral evidence, the Tribunal is of the opinion that it is likely that the applicant was suffering from some high frequency sensorineural hearing loss, of unknown cause, and of which he was unaware, prior to his entering National Service, and that his present hearing loss condition is entirely attributable to that pre-existing idiopathic condition, supplemented by age-related hearing loss (presbycusis), and is unrelated to his National Service training.
Conclusion
The applicant’s entitlement to permanent impairment compensation under s 24 of the SRC Act in respect of the hearing loss condition depends, pursuant to s 124(3) of the SRC Act, on whether he was “entitled to receive compensation of a lump sum” in respect of that condition under (relevantly) the 1930 Act.
Having regard to the evidence before the Tribunal and to the above discussion, the Tribunal is not satisfied, on the balance of probabilities, that the hearing loss condition is either:
·a “personal injury by accident arising out of or in the course of [the applicant’s] employment by the Commonwealth” (namely his National Service training in the Australian Army in 1966), within the meaning of s 9(1) of the 1930 Act; or
·a “disease … due to the nature of the employment in which the [applicant] was engaged by the Commonwealth” (namely, his National Service training in the Australian Army in 1966), within the meaning of s 10(1) of the 1930 Act.
The Tribunal concludes, therefore, that the applicant was not “entitled to receive compensation of a lump sum” in respect of the hearing loss condition under the 1930 Act.
It follows, pursuant to s124(3) of the SRC Act, that the respondent is not liable, to pay permanent impairment compensation under s 24 of that Act to the applicant in respect of the hearing loss condition, and the Tribunal so determines.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ...(Sgd) T Freeman............
Administrative Assistant
Dated 19 February 2015
Date of hearing 29 January 2015 Applicant In person Counsel for the Respondent Mr B Dube Solicitors for the Respondent Australian Government Solicitor
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