Westhorpe v Eastern Australia Airlines Pty Ltd t/as QantasLink
[2025] NSWPIC 423
•21 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Westhorpe v Eastern Australia Airlines Pty Ltd t/as QantasLink [2025] NSWPIC 423 |
| APPLICANT: | Stephen Millar Westhorpe |
| RESPONDENT: | Eastern Australia Airlines Pty Ltd t/as QantasLink |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 21 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for bilateral hearing aids; whether applicant sustained noise induced hearing loss; whether employment caused a loss of hearing pursuant to section 17; Held – applicant’s expert evidence preferred; compensable injury pursuant to section 17; treatment reasonably necessary pursuant to section 60; award for the costs of supplying and fitting binaural digital hearing aids in accordance with the current Workers Compensation (Hearing Aid Fees) Order. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained an industrial deafness injury arising out of or in the course of his employment with the respondent. 2. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury was due for the purposes of s 17(1)(a)(i) of the Workers Compensation Act1987. 3. The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury and the respondent is liable for the cost of hearing aids on production of accounts and/or receipts pursuant to s 60 of the Workers Compensation Act1987. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Stephen Westhorpe (the applicant) was employed as an aircraft engineer for over 25 years. He claims prolonged noise exposure with Eastern Australia Airlines Pty Ltd t/as QantasLink (the respondent) now results in the need for hearing aids. The respondent’s insurer has denied liability with reference to the Workers Compensation Act 1987 (the 1987 Act).
The matter underwent the usual case management pathway before the Personal Injury Commission (Commission). Parties requested a determination on the issue of causation, injury and whether hearing aids sought were reasonably necessary as a result of the injury.
Mr Malouf of counsel instructed by Ms Ireland represented the applicant. Mr Doak of counsel instructed by Ms Fung represented the respondent. Ms Harrison was the insurer representative.
The evidence was limited to the documents attached to the Application to Resolve a Dispute (ARD) and the Reply. No oral evidence was called.
Applicant’s position, medical evidence and submissions
In a statement dated 6 March 2025 the applicant summarises his lengthy employment history as an aircraft engineer for the respondent. His employment exposed him to the noise emitted by various pneumatic, power and hand tools, rattle guns, hydraulic equipment, grinders and sanders. Hearing protection was provided and used but was impractical to use when engaging in conversation. Noise was consistent but varied in intensity. There was additional noise from plane arrivals and departures, riverters, dust extraction systems and specifically when checking hydraulics. He recalls having to raise his voice to have a conversation with a work colleague even within arm’s reach. He claims all of this noise has now resulted in hearing impairment and tinnitus which is impacting the quality of communication both at home and in social settings. He denies involvement in military service or recreational activities that would impact hearing. In an attempt to communicate more effectively, he is keen to trial hearing aids.[1]
[1] Folio 1-3 ARD.
Medical evidence
Shilpa Shree, audiologist (Amplifon) conducted a hearing assessment on 23 September 2024.[2] Bilateral mild sensorineural hearing loss was diagnosed and mild tinnitus confirmed. It was concluded the work history was “suggestive of noise induced hearing loss”. The social difficulties arising from hearing loss were recorded. Hearing aids were recommended with an aim to improve speech clarity and assist with hearing in crowds and noisy places.
[2] Folio 28 ARD.
The audiogram dated 23 September 2024[3] records progressive loss between the low to higher frequencies more on the right side. The loss in the left ear likewise demonstrates loss progressing from the lower to higher frequencies, then dipping, but again to only progress into the higher frequencies.
[3] Folio 29 ARD.
Dr Tamhane, ear, nose, and throat surgeon (ENT) was qualified on behalf of the applicant on 11 November 2024.[4] The examination was via telehealth with reliance on the Amplifon audiogram.
[4] Folio 20-24 ARD.
A consistent history of noise exposure was taken with high pitched tinnitus reported mainly at night. Head injury, family history, military or recreational noise exposure and infections were excluded. He concluded that exposure to noise in and around the hangers including those emitted by machinery, and aircraft engines along with landing and take-off noise on nearby runways was sufficient to have resulted in hearing impairment and possessed the tendencies, incidents and or characteristics which on the balance of probability would give rise to a real risk of boiler makers deafness. He concluded the respondent was the last noisy employer.
His assessment of the audiogram resulted in a diagnosis of bilateral high tone sensorineural hearing loss in the 2000Hz to 4000Hz frequencies which he considered “was a direct result of exposure to loud noise at work”. He considered the hearing loss was permanent and unlikely to deteriorate unless further exposed to noise. Digital hearing aids were considered reasonably necessary to assist with optimal audibility, intelligibility and comfort in background noise.
In a further report dated 14 May 2025, Dr Tamhane reinforced his conclusions on the basis of the length of employment (over 20 years); the noise exposure within the workplace (which he concluded was greater than 85 decibels); the configuration of the audiogram and the absence of any other causes to account for the findings on the audiogram between 2000Hz to 4000Hz.
Submissions
On behalf of the applicant it was submitted:
(a) the evidence establishes long term employment in a noisy environment and specifically excludes any other cause for hearing loss or the need for hearing aids;
(b) the applicant is credible and has been consistent in his representations and there has been no challenge to his evidence;
(c) the applicant’s statements have provided detailed evidence of the nature and extent of noise exposure and his treating and qualified practitioners have concluded that the tendency, incidents and characteristics of that employment have given rise to the current need for treatment, such assessments falling squarely within the ‘common sense test’;
(d) there is no other activity, history or evidence to suggest any other events/incidents have contributed to the need for treatment or indeed the level of loss and the respondent’s medical evidence has failed to deal with this, and
(e) Dr Howison has not made any reference to the nature, incidents and characteristics of noise exposure but does acknowledge a period of employment of greater than two decades as an aircraft engineer.
Respondent’s position, evidence and submissions
The grounds for disputing liability are found in the s 78 notice[5] in which the insurer maintains;
(a) injury had not been established;
(b) the audiogram carried out by Amplifon did not record symmetrical progressive hearing loss consistent with noise induced hearing loss as noise induced hearing loss is typically bilaterally symmetrical and progressive from the low to the high frequency. It follows that any loss is unrelated to noise exposure with the respondent;
(c) employment was not a substantial contributing factor to any injury – ss 9 and 17 of the 1987 Act, and
(d) hearing aids are not reasonably necessary as a result of employment with the respondent – s 60 of the 1987 Act.
[5] Folio 15-19 ARD.
Medical evidence
Dr Howison, ENT was qualified by the respondent[6] with assessments being limited to file reviews. The initial opinion dated 13 December 2024 was limited to a review of the Amplifon audiogram and hearing aid quote. That is, the doctor was denied the benefit of the applicant’s statement which admittedly postdates his review.
[6] Folio 5-7 Reply.
Dr Howison noted the long term employment as an aircraft engineer and acknowledged the bilateral high tone sensori-neutal hearing loss more marked at 2.0kHz than at 3.0 and 4.0 kHz. He concluded noise induced hearing loss is “typically bilaterally symmetrical and progressive from the low to the high frequencies, therefore the audiogram carried out by Amplifon is not consistent with noise induced hearing loss” (my emphasis).
He confirmed a diagnosis of bilateral sensori-neural hearing loss but postulated it was of unknown origin and could not advance his opinion further in the absence of an evaluation by an ENT surgeon. He considered the provision of bilateral digital hearing aids was the only available treatment however maintained the respondent was not liable as the hearing loss had no relationship to employment.
A supplementary opinion was provided on 3 January 2025[7] which considered the opinion of Dr Tamhane dated 11 November 2024. Dr Howison was critical Dr Tamhane had not examined the applicant and relied on the audiogram of Amplifon. He repeated his earlier opinion that the audiogram failed to establish progressive loss from the low to high frequencies reinforcing his view that any hearing loss was not ‘industrial deafness’. He concludes that hearing aids are essential but unrelated to any employment.
[7] Folio 8-10 Reply.
Submissions
On behalf of the respondent it was submitted;
(a) the applicant must demonstrate on the balance of probabilities that he was engaged in employment of a nature to which injury is due and has failed to do so;
(b) it is not the respondent’s role to postulate reasons for hearing loss (apart from employment), that is the burden of the applicant;
(c) the applicant has failed to demonstrate the type of noise, intensity and exposure during the average working day and his evidence in relation to exposure is non-specific, and
(d) there should be an award for the respondent in respect of the claim as the evidence is unsatisfactory and unable to comfortably persuade the existence of an injury.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The law relevant to this applicant is found in the 1987 Act.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment.
Section 17 of the 1987 Act prescribes the ‘special provisions’ that must be satisfied in relation to hearing claims, where the injury is of gradual onset. Specifically this section prescribes a deemed date of injury and identifies the employer who is liable provided it is established that such employment was of a nature of which the disease/injury was due.
Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay for the cost of that treatment or service. The following key principles are relevant in the assessment of this matter:
(a) the applicant bears the onus of proof to establish his employment with the respondent carried the risk of him suffering from industrial deafness (Galdemar);[8]
(b) the onus is on the balance of probabilities[9] that he was engaged in employment to the nature of which the injury was due (Nguyen);
(c) in order to discharge the onus, the applicant must provide detailed evidence as to the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the tendency, incidents or characteristic of that employment are such as to give rise to a real risk of boilermaker’s deafness (Oztop);[10]
(d) all that is necessary under s 17 is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that employment brought about or contributed to the disease (Civitarese);[11]
(e) attention must be directed not to whether the employment 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; (Lobley);[12]
(f) the nature and quality of the evidence needed for a worker to succeed will depend on the circumstances of each case;
(g) it is not sufficient for a worker to declare employment was noisy. There must be detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness” (Dawson);[13]
(h) a “subjective account of noise” by an applicant will not suffice if there is expert evidence that the particular employment was not noisy (Ilievski),[14] and
(i) in evaluating tendency, incidents and characteristics, the commonsense evaluation of the causal chain in accordance with the principles is to be adopted[15] (Kooragang).
[8] per Neilson CCJ in Galdemar v Asta Enterprises Pty Ltd [1998] NSWCC 47; 17 NSWCCR 155 (at [26]).
[9] The relevant principles of onus of proof were discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]-[48]: “44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.”
[10] South Eastern Sydney Local Health District v Halil Oztop [2012] NSWWCCPD 50.
[11] A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158.
[12] Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley).
[13] The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35.
[14] Burke CCJ in Ilievski v Sutherland Shire Council (unreported 6 March 2001).
[15] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 79.
Has the applicant sustained an injury as defined in the 1987 Act?
The medical consensus is that the applicant does have hearing loss. I so find.
The dispute is whether the injury relates to employment. Both Ms Shree and Dr Tamhane have interpreted the audiogram to be consistent with industrial deafness and Dr Tamhane has after considering the applicant’s description of the workplace and exposure to noise determined that the nature, characteristics and incidents were present to result in the level of loss and need for treatment.
Dr Howison dismisses any loss as being attributable to the workplace concluding that because industrial deafness loss audiograms are “typically bilaterally symmetrical and progressive from the low to the high frequencies” (which is not the case here), the loss cannot be related to any noise exposure.
I find the opinion of Dr Howison is lacking. This is because he did not have the benefit of the applicant’s statement which particularised the nature, characteristics, incidents and type of noise he was exposed to both with and without hearing protection. Dr Howison makes much of the fact that the hearing loss is not symmetrical which is “typical” of industrial deafness and also that the loss is overall not progressive from the low to high frequencies. In making this assessment he ignores the progressive losses between the 2000 to 4000Hz frequencies and other frequencies and fails to consider whether hearing aids would assist in the losses found within these ranges and in other progressive loss ranges. He also concludes the loss is not “typical” however each case turns on its own merits. I consider without the benefit of a complete understanding of the applicant’s daily and variable exposure to noise (as he did not have the provision of the applicant’s statement) and especially in circumstances where the level and type of noise exposed to has not been disputed by the respondent, his opinion is ill informed and therefore unpersuasive.
I am satisfied and find that Dr Tamhane had a reliable history of the characteristics of the applicant’s work environment including the nature (volume) and extent (duration) of the noise exposure (Oztop). I make this finding as the applicant’s representations have been consistent throughout the claims process. I accept he is credible and note the absence of a challenge on credibility. Dr Tamhane considered the type of noise and frequency when giving his ultimate opinion and was satisfied they were of a type which could give rise to the injury. His interpretation of the audiogram is accurate regarding the losses found in various frequencies. In weighing the evidence and having regard to these factors, I prefer the opinion of Dr Tamhane.
I find the applicant has sustained an injury in the nature of a hearing loss caused by a gradual process of exposure to noise. I further find his employment with the respondent was employment to the nature of which the injury was due at the date of notification (30 September 2024). This is because there is no other employment, noise exposure or family history evident influencing or contributing to the injury. Further the commonsense evaluation of the causal chain (Kooragang) supports that the applicant was on the balance of probabilities (Nguyen) exposed to loud noise that had the “tendencies, incidents or characteristics” (Lobley) to give rise to a risk of hearing loss. This was not challenged by the respondent. Given this, I am comfortably persuaded and satisfied the applicant has sustained a compensable injury for which the respondent is liable – s 17 of the 1987 Act refers. I so find.
Is the claim for treatment reasonably necessary?
As regards the claim for s 60 expenses pertaining to the hearing aids, there is medical consensus the provision of hearing aids is appropriate, accepted and an effective form of treatment for industrial deafness and further comes at a fixed cost. No alternative treatment options were proposed.
I acknowledge the respondent’s submission that Dr Howison has postulated a non-work related component to hearing loss and there may be other contributing factors (on which he does not expand). It is relevant to note it is a well-established principle that work injury does not have to be the only or even substantial cause of the need for the treatment before the cost of the treatment is recoverable under s60 of the 1987 Act.[16] The opinion of Dr Howison on this point, does not alter my findings especially given the progressive loss of hearing at various frequencies noted on the audiogram which I have found to be due to ‘injury’.
[16] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
I find therefore that the treatment is reasonably necessary.[17] It follows the respondent is liable for the costs associated with supply and fitting with reference to the applicant SIRA Fees Order.
SUMMARY
[17] Rose v Health Commission (NSW) [1986] NSWCC 2 and Diab v NRMA Ltd [2014] NSWWCCPD 72.
For the reasons above, I make the findings and orders as set out on page 1 of the Certificate of Determination.
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