Welch and Military Rehabilitation and Compensation Commission

[2007] AATA 1733

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1733

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2006/269

VETERAN’S  APPEALS  DIVISION		)
Re		MAXWELL WELCH

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date24 August 2007

PlaceCanberra

Decision1.    The reviewable decision made 12 October 2006 affirming that Mr Welch is entitled to a lump sum payment of $371.11 based on am 11.3% loss of hearing is set aside.

2.In substitution for the decision set aside it is decided that Mr Welch is entitled to a lump sum payment based on an 11.1% loss of hearing.

3.The reviewable decision made 12 October 2006 affirming a determination that liability for compensation was not accepted in respect of an Ostitis Externa and Conductive Hearing Loss condition is affirmed.

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

J.W. Constance. Senior Member

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TRANSCRIPT OF PROCEEDINGS

O/N 62907

ADMINISTRATIVE

APPEALS TRIBUNAL

MR J. CONSTANCE, Senior Member

No A2006/269

MAXWELL DENIS WELCH

and

MILITARY REHABILITATION AND COMPENSATION COMMISSION

CANBERRA

FRIDAY, 24 AUGUST 2007

MR CONSTANCE:   The matter of Welch v Military Rehabilitation and Compensation Commission, which is number A2006/269.  Mr Welch, we will provide a transcript of this decision.  You needn’t worry too much about the detail of that.

MR WELCH:   Thank you very much.

MR CONSTANCE:   Thank you for attending and just sit and listen.

Mr Welch has applied to the Tribunal for a review of two decisions, both made on 12 October 2006.  The first of those is a decision to affirm an earlier decision that Mr Welch suffered a compensable hearing loss of 11.3 per cent and that as he was discharged from the army in 1959, the rates of compensation applicable at that time must be used to calculate the monetary amount of his entitlement.  A total of 100 per cent loss of hearing at that time attracted a lump sum payment of $3290.  And as he is entitled to an 11.3 per cent loss, equating to a lump sum payment of $371.77.

The second decision which he seeks to have reviewed is a decision of the same date affirming a decision that his condition related to otitis external, which whilst occurring during service, was not related to his service and that therefore his claimed otitis externa and associated conductive hearing loss is not compensable.

There was a third decision relating to a claim for tinnitus, but that has been settled and it’s not necessary to make a decision in relation to that claim.

I make the following finding of fact based on the evidence of Mr Welch and the evidence that is before me in the documents filed pursuant to section 37.  Those documents were marked as exhibit Z1, but for convenience I will refer to them by their individual T reference.  I am satisfied of the facts found on the balance of probabilities and unless specified otherwise, the facts are found on the basis of the evidence of Mr Welch.  I found him to be an honest witness and an honest historian, or an accurate historian.

Mr Welch joined the Australian Army in 1950 at the age of 15 years and seven months.  At the time he had no hearing problems, and this is confirmed by his medical history sheet which appears at T236a.  He undertook basic training for six months, and that involved the use and being in the vicinity of rifles being fired, Bren guns and generally quite a noisy period.  He was not provided with any ear protection at that time and in addition spent part of that time in a workshop which also was noisy.  In fact it’s quite clear that Mr Welch’s career in the army was generally in environments that were extremely noise.  And whilst it’s difficult to understand in this day and age, at that time there was no hearing protection provided.

After his six months basic training, he then spent the next two and a half years in his trade training as a carpenter and joiner.  That involved work with woodworking machines, circular saws, buzzers and generally was very noisy.  He spent four and a half days in quite a small workshop and the noise he described in that time was continuous.  Again he was not provided nor did he use hearing protection at that time.

In mid-1953 he graduated from apprentice school and transferred to the 17th Construction Squadron with the Royal Australian Engineers in Sydney.  He was employed as a carpenter and joiner and was initially involved in the construction of new barrack blocks for about two years.  He continued using noisy machinery indoors and again without ear protection.  His time in the army covered nine years, and I am satisfied that in the whole of that time he worked in a noisy environment.

In mid-1955 he was promoted to corporal and he was in charge of a woodworking machine shop which involved the preparation of timber and door and window construction.  In that workshop there was a large circular saw that operated, there was dressing machines and other large machinery, and again he worked in a noisy environment five days per week.  And he described it as being continual machine noise except for meal breaks.  In addition, each year he went on a refresher course which involved the noise of various forms of rifle and gunfire.

He first noticed the condition of otitis externa in about 1952, and this is confirmed by the documents in Z1.  He describes this condition as his ears being constantly dry, as they have no - they’ve lost their natural lubricant, they’re constantly itchy and he is constantly removing debris from them.  He says this has been continuous and much the same ever since 1952.  He also says that during his time in the army he suffered allergies, mostly dust related, and he worked understandably, as well in a noise environment, being in the workshop such as he described it, was a very dusty environment, and again there was no protection provided nor worn.  He did seek treatment for his ear condition.

Mr Welch has raised a number of arguments.  He has argued that the incorrect treatment of otitis externa by today’s standards, that is, by flushing with silver nitrate, can of itself result in hearing loss, tinnitus, vertigo and dizziness.  He also argued that there’s a medical relationship between conductive hearing loss, sensori-neural hearing, tinnitus and otitis externa.  He argued that the conductive element of deafness is related to the otitis externa which occurred during his army service.  And he made the point that he did not suffer any ear or hearing problems or when he joined the army but experienced those quite soon after.

He also raised an argument that any reduction in the measurement of his hearing loss for age correction was not appropriate, as it was not shown that he was in that percentage of the population over 60 who in fact suffered age-related hearing loss.  And finally, he put the argument that it was not his fault that medical records, particularly as to the development of his otitis externa and treatment of the condition of hearing loss are deficient and may not have all been retained.

Mr Welch did not seek to call any medical evidence, but was content to accept the - or have the Tribunal rely on the report of Dr Walker.  Dr Walker is a consultant ear, nose and throat surgeon who specialised in that field since 1960.  He assessed Mr Welch on 9 December 2005, and that included audiometric testing.  That assessment was carried out on behalf of the Commission.

Dr Walker’s report is in evidence as document T19, and he provides a useful summary of Mr Welch’s medical condition.  That appears at page 3 of his report of 13 December 2005.  I quote from that report:

Mr Welch first became conscious of deafness about 20 years ago when he had difficulty hearing in noisy surroundings.  Both ears were affected, but he thinks the left was worse than the right.  His hearing has become gradually worse since then, particularly in the left ear.  He suffers from intermittent attacks of itchy and inflamed ears, treated medically by his generally practitioner.  These attacks occurred every few years while in the army but are now occurring almost constantly, unless he uses the appropriate ear drops  He has complained of a constant ringing and buzzing tinnitus for the last 20 years but says he is -

Quote -

“used to it” -

Close quote.

Both ears are equally affected.  There is no history of giddiness or headache.  He has not been exposed to toxic drugs or noxious fumes.  He has some degree of nasal blockage but has not sought treatment for this.

End of quote.  The doctor later refers to current symptoms as - quote - “His main current symptoms are deafness and tinnitus” - close quote.

Dr Walker also provided a supplementary report of 2 May 2007 which clarified his assessment of the hearing loss suffered by Mr Welch.  And I quote from page 2 of that report:

I do not consider low tone hearing loss, which is partly of conductive nature, to have been caused by noise exposure during his military employment and there was a hearing loss only at 2000, 3000, 4000 cycles, and each ear has been considered.  I consider this as reasonable, given that his army service was only for nine years.

(2)  I have also deducted some of the high tone hearing loss in his left ear as not being related to noise exposure.  Total loss of hearing in the high tones, as shown by his left audiogram, is unlikely to have been caused by noise.  I have therefore equated the sensori-neural component of his left ear to that of the right ear in assessing deafness due to noise exposure.

And a little later in the report:

Given that his hearing loss, i.e., noise exposure hearing loss, is maximum in the 6000 cycle range, as is common from gunfire exposure, the calculation according to the NAL 1988 scale with extensions to 6000, 8000 cycles gives a compensable hearing loss of 16.6 per cent, which, after deduction for presbycusis of 5.5 per cent, gives a compensable hearing loss due to noise exposure while in the services as 11.1 per cent binaural.

End quote.  On the basis of Dr Walker’s experience and on the basis that there is no other evidence before me to suggest that Dr Walker is not correct in his assessment, I accept that assessment.  I also note that Dr Walker gave evidence, as well as providing his reports.  And I quote from page 9 of the transcript of his evidence of 27 July 2007.  He was asked this question - quote:

And ultimately then, you’ve indicated you took a benevolent view in relation to the noise-related hearing loss.  What did you mean by that?

The answer was:

I mean I gave - all the deafness in his left ear - all the sensory neural deafness in the left ear equals that in the right ear, assuming that the noise was equally affecting both ears.  And the additional deafness in the left ear I’ve deducted because I figure that’s too much to be caused by noise.

End of quote.  At page 10 Dr Walker was asked as to his view as to the effect, if any, of the treatment by flushing with silver nitrate.  He said, and I quote:

There’s no evidence I’ve ever seen that it causes permanent damage.

Close quote.  He also gave evidence that he’s seen a lot of people who work in workshops in dust, that he’s seen a lot of industrial deafness in the course of his practice, and yet very few of them have otitis externa and that nasal allergy does not cause otitis externa.  And at page 12 he said, in relation to the necessity to allow for an age correction in assessing hearing loss, he said that - I quote:

That’s standard with all audiograms.  And that’s a standard done by the National Acoustic Laboratories from way back, from for 1960s, when they first started organising percentage hearing loss.

Close quote.  And I note in relation to that, whilst Mr Welch raised concern as to why that should be taken into account, that when one looks at the guide to the assessment of permanent impairment, and particularly table 7.1 in relation to hearing, it provides that hearing defects were assessed in accordance with the current procedures for the Australian National Acoustic Laboratories.  And whilst it’s perfectly understandable that Mr Welch raised the argument he did, it would appear that the assessment guide itself provides for that age correction to be made and it’s not a matter of discretion to exclude it.

I’ve also taken into account from the T documents that T4 discloses a diagnosis of otitis externa as early as August 1952.  Document T9a provides details of Mr Welch’s service and noisy working conditions, which simply confirms his evidence.  I also note that at T23 there is a report of a Dr Bashir - B-a-s-h-i-r - of 24 January 2006 which indicates that Dr Bashir had read the report of Dr Walker, and his report, although it’s very brief, confirms - or states his view that he was unable to relate the otitis externa to the conditions and duties of Mr Welch’s service, as he served exclusively in New South Wales and Victoria and there were no grounds such as serving in a tropical climate nor working in especially humid conditions.

I do note that there is little information as to Dr Bashir but I do take that report into account.  And I’ve also had reference to document T36a, which provides Mr Welch’s medical history at the time he enlisted, which indicates that he was in excellent health and did not have any hearing problems.

But on the basis of the evidence before me, there appears to be no basis to do other than to affirm the decisions under review.  As I said earlier, I can understand Mr Welch’s concerns and his wanting to have the matters reviewed.  And I understand that in the process of that review he may well have gained some further information which would assist him in understanding the decisions.

A formal decision will be issued but the decision of the Tribunal is that both decisions under review are affirmed.

Anything further I should deal with?

MR WILSON:   No, thank you, Senior Member.  There is a slight complication I guess there with the revision of the percentage hearing loss figures.  The real decision actually decided on 11.3 per cent figure, based on Dr Walker’s first report, but his subsequent clarifying written reports in evidence ended up dropping that figure down to 11.1 per cent.  So we have the unfortunate situation where the evidence as it stands now actually paints a picture that 11.1 per cent is the bilateral sensori-neural hearing loss figure.

MR CONSTANCE:   I did notice that at one stage and thought there’d been - there was another calculation that suggested that was right.

MR WILSON:   Yes, it’s a curious one.  I think going through here, I think, as I understand it, it’s Dr Walker’s evidence that it’s 11.1 per cent, as opposed to the MRCC to cite 11.3 per cent.  I think practically it’s not going to be an issue, but from a decision-making point of view, if you accept the 11.1 per cent, then it probably needs to be varied - that T52 reviewable decision probably needs to be varied to reflect - - -

MR CONSTANCE:   So, where do we go to?  His last report?

MR WILSON:   I think the report you’ve read out, the 2 May ’07 report, which you read out as part of this decision - - -

MR CONSTANCE:   That’s the correct version?

MR WILSON:   Yes.  So, Mr Welch did - and I think that was pointed out in the first PC that the numbers really didn’t add up to get to 11.3 per cent.  And then when we went back to him, he apportionally reduced the figure.  In the end it’s a $6.58 difference for the calculation.  Whether or not MRCC actually enforces that repayment is a - we haven’t to date and we certainly didn’t - I didn’t get any instructions to vary the reconsiderations such as to reflect the 11.1 per cent figure.  But I think from the Tribunal’s point of view - - -

MR CONSTANCE:   So, you’re saying that if I look at the bottom of page 2 of his report, the supplementary report, it says:

In summary, his compensable hearing loss due to military service is 11.1 per cent.

MR WILSON:   Correct.  And his oral evidence at the hearing was also that 11.1 per cent figure.  So, unfortunately the T documents and letters to a reviewable decision which cited an 11.3 per cent figure, but at present the correct figure should be 11.1 per cent.  And that’s what I suggest should be reflected in the AAT’s decision.

MR CONSTANCE:   So, we should in effect set aside the decision ‑ ‑ ‑

MR WILSON:   I believe so.

MR CONSTANCE:   Or vary the decision to provide for a hearing loss of 11.1 per cent?

MR WILSON:   Correct.  That’s right.  So, that’s at T52.  But otherwise the affirmation of the T 54 reviewable decision should stand.

MR CONSTANCE:   All right.  I’ll withdraw what I said in relation to the decision as the percentage hearing loss, and the decision that we issued will vary the decision under review to provide that the compensable hearing loss due to military service is 11.1 per cent binaural loss - sorry - just 11.1 per cent.

MR WILSON:   Thank you.

MR CONSTANCE:   Nothing further?

MR WILSON:   No, thank you.

MR CONSTANCE:   Thank you.  I adjourn the Tribunal.

MATTER ADJOURNED at 9.20 am INDEFINITELY