Young v Cordina Foods Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Young v Cordina Foods Pty Ltd & others [2023] NSWPIC 140
APPLICANT:	Christopher Young
FIRST RESPONDENT:	Cordina Foods Pty Ltd
SECOND RESPONDENT	Inghams Enterprises Pty Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	3 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for cost of hearing aids pursuant to section 60(5); each respondent disputed that it was the last noisy employer; issues of notice and claim; injury; reasonable necessity of medical treatment; consideration of Diab v NRMA Ltd, Unilever Australia Ltd v Petrevska, Inghams Enterprises Pty Ltd v Jones, Dawson and others trading as The Real Cane Syndicate v Dawson, Gregson v L and MR Dimasi Pty Ltd, Westlake v Sydney Symphony Subscribers Committee, Zheng v Xie, Heatcraft Australia Pty Ltd v Lapa, Roads and Traffic Authority of NSW v McNally and Blayney Shire Council v Lobley; Held – award for the first respondent; the second respondent is to pay the costs of the supply and fitting of binaural hearing aids pursuant to section 60(5).
determinations made:	1. There is an award for the first respondent. 2. The second respondent is to pay, pursuant to s 60(5) of the Workers Compensation Act 1987, the costs of the supply and fitting of binaural hearing aids.

STATEMENT OF REASONS

BACKGROUND

The applicant, Christopher Young (Mr Young), was employed by each of the respondents as a maintenance engineer.
Mr Young was employed by the first respondent, Cordina Foods Pty Ltd (Cordina) from 2017 to 1 March 2019, and by the second respondent, Inghams Enterprises Pty Ltd (Inghams) for two periods, firstly from 2016 to 2017, and secondly from 1 April 2019 to 30 April 2021.
The applicant completed a Notice of Injury & Authority to Act (the notice) on
16 December 2021. The notice stated that he was last employed by Inghams on
30 April 2021.
By letter dated 5 April 2022, the applicant’s solicitors served on his behalf a letter of claim on Inghams.
The applicant served the notice, medical evidence, quotation, evidence of employment, and State Insurance Regulatory Authority search results.
The applicant made a claim for the cost of the supply and fitting of two hearing aids, in the amount of $4,221.90.
By letter dated 7 April 2022, Inghams, which is self-insured, advised the applicant that it accepted provisional liability for payment of medical expenses only. Reasonable medical expenses up to $10,000 would be considered during the provisional liability period.
On 21 June 2022, Inghams’ solicitors issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Inghams disputed liability for the applicant’s claim.
Inghams disputed that Mr Young’s employment had the necessary tendencies, incidences or characteristics so as to cause hearing loss; that it was the last employer for which he had carried out work to the nature of which any disease was due; that the injury alleged was in the nature of a disease process, and his employment was not the main contributing factor to the cause of any such disease; that any medical treatment was not reasonably necessary as a result of injury; and that he had complied with the requirements of the legislation so far as the notification of injury and claiming compensation, such that he was precluded from recovering compensation.
By letter dated 7 September 2022, the applicant’s solicitors requested Inghams to review its decision.
On 15 September 2022, Inghams’ solicitors advised the applicant’s solicitors by email that the decision to decline liability was maintained.
By letter dated 21 September 2022, the applicant’s solicitors made the same claim on Cordina. In addition to the evidence served on Inghams, it served the applicant’s statement, dated 2 August 2022, and its correspondence with Inghams and its solicitors.
On 12 October 2022, Cordina’s insurer, GIO, served on the applicant a notice pursuant to
s 78 of the 1998 Act.
GIO also disputed liability for the applicant’s claim.
GIO disputed that Cordina was the applicant’s last noisy employer. It also disputed that he was entitled to compensation because he had failed to give notice of his claim and failed to make a claim within the time required by ss 254 and 261 of the 1998 Act; and that medical treatment was reasonably necessary.
The applicant lodged an Application to Resolve a Dispute (the Application) on
23 November 2022. Cordina was named as the first respondent; and Inghams as the second respondent.
The applicant claimed that the deemed date of injury (disease) was 30 April 2021, and that as a result of the loud noise he was exposed to during his employment with the respondents, he sustained binaural hearing loss. He claimed the sum of $4,221.90 for the costs associated with the supply and fitting of a lifetime guarantee of hearing aids in accordance with the Workers Compensation (Hearing Aids) Fees Order 2022.
The second respondent lodged its Reply on 30 November 2022.
The first respondent filed its Reply on 15 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) First respondent:
(i) whether it was the last employer in employment to the nature of which the injury is due;
(ii) whether the proposed medical treatment is reasonably necessary, and
(iii) whether the applicant gave notice of the injury and made a claim within the time provided for by the legislation.
(b) Second respondent:
(i) whether employment had the necessary tendencies, incidences or characteristics so as to cause hearing loss;
(ii) whether it was the last employer in employment to the nature of which the injury is due;
(iii) whether employment was the main contributing factor to the injury;
(iv) whether the proposed medical treatment is reasonably necessary, and
(v) whether the applicant gave notice of the injury and made a claim within the time provided for by the legislation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for hearing on 10 March 2023, on the Teams platform.
Ms Grotte of counsel, instructed by Ms Dahdal, appeared for the applicant, who was present. Mr Stiles of counsel appeared for the first respondent, instructed by Ms Brown. Mr Saul of counsel, instructed by Mr Macken, appeared for the second respondent. Mr Hood of GIO was excused from attendance but was available to provide instructions if required.
The second respondent raised that the applicant was employed by the first respondent within the period of five years before the claim was made, and if an award were to be made against the second respondent, there would be a contribution payable by the first respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents, and
(d)    Application to Admit Late Documents, filed by the second respondent, dated
1 March 2023, and attached documents.

Oral evidence

There was no application to cross-examine the applicant or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Christopher Young

Mr Young’s statement is dated 2 August 2022.
He has not made any prior industrial deafness claims.
In 1987, he commenced full time employment at Master Foods in England. He attended to office work 50% of the time and was in the warehouse for the other 50% of the time. He was employed as a maintenance engineer, where he would work amongst various machinery.
The machines included processing machinery, compressors, general operational machinery, and boilers. At all times, while they were operating, he estimated he was in or around four metres away.
The only time he would need to be near the machines was when he needed to fix them. They would be turned off and he was not exposed to noise whilst fixing the machines. He used general hand tools such as screwdrivers and hammers, which in his opinion were not noisy. He was provided with ear plugs.
He ceased employment in 2008. He then moved to Australia to work at Master Foods New South Wales branch, employed on a 38-hour week.
He was exposed to noise in or around 50% of the time, as he was employed as a project manager. He estimated that 50% of the time he was in the office. The other half was spent in the warehouse, where he was again exposed to machinery such as boilers, compressors, and operating machinery. He was in or around three to four metres from these machines. He estimated he was exposed to machines for up to four to five hours a day. At times, they were so noisy that he had to shout over them to converse with people.
He ceased employment with Master Foods in 2014.
In 2015, he commenced employment with One Harvest, which is formally known as Vegco Pty Ltd. He was employed as a maintenance manager, on a 38-hour week. He was helping to build a new factory.
Around 50% of his time was spent in the office attending to clerical and administrative duties. Similar to Master Foods, the other 50% of his time, he was exposed to noise through various machinery such as boilers, processing machinery, operational machinery, and compressors. He was in or around three to four metres away from these machines at all times, for up to four to five hours a day. He was given ear defenders.
He ceased work for One Harvest in 2016.
In 2016, he was employed by Inghams in engineering and maintenance, on a 38-hour week. He attended to office work 50% of the time and was in the warehouse the other 50%. At times, he was exposed to noise for up to eight hours a day. He estimated that on average he was exposed to noise three to four hours a day, depending on how much time he spent in the warehouse. He ceased work in 2017. The noise exposure was primarily similar to that at his second period of employment with Inghams, to which he referred later in his statement.
In 2017, he was employed by Cordina in engineering and maintenance, working 38-hour weeks. He was employed on the basis that he attended office work 50% of the time and was in the warehouse the other 50%. He estimated he was exposed to noise for two to three hours a day, depending on how much time he spent in the warehouse. At times, he would be exposed to noise for up to four to five hours a day.
There were machines such as compressors, mixers, packaging machines, operating machines, and filler machines at Cordina. He was in or around two to three metres away from these machines at a time.
The compressors made a high-pitched whiny noise, which was irritable [sic]. This occurred and ran all day for the three to four hour day. He was exposed to boilers that generated a whistling noise that would run all day.
The processing and packaging machines exuded a dull thudding noise from the motor utilised for up to three to four hours a day. He was only two to three metres away from these machines. The mixer machines also exuded a grinding and squealing noise, which would generate for up to four to five hours a day.
It was difficult to talk over the noise, and difficult to concentrate at times, due to all the noise. He was provided with ear plugs and wore them consistently. The noise was still prevalent through the ear plugs.
He ceased employment with Cordina on 1 March 2019.
On 1 April 2019, he commenced employment with Inghams, in engineering and maintenance, on a 38-hour week.
He attended office work 50% of the time and was in the warehouse the other 50%. At times, he was exposed to noise for up to eight hours a day. He estimated that, on average, he was exposed to noise three to four hours a day, depending on how much time he spent in the warehouse.
He was exposed to processing machinery, which would exude noise up to two to three hours a day. The motors exuded a constant grinding and knocking noise all day, to a point where he could not hear over his colleagues and relied on lip reading most of the time. At times, he needed to shout over the machines to have a conversation. He was in or around two to three metres from the machines.
He was exposed to air compressors that generated a loud humming and rattling noise, which would run all day, for up to two to three hours a day. He was in or around two to three metres away from the compressors. He was mostly exposed to them on an occasional basis.
He was exposed to noise through mixer machines that generated a screeching and consistent noise which would also run for up to two to three hours a day. This noise was also irritating and made it increasingly difficult to have conversations or concentrate. At times he was in or around two metres from the machines.
He was exposed to processing plants that processed poultries. They exuded a high pitched and consistent noise for up to two to three hours a day. He was in or around two metres away.
He ceased work with Inghams on 30 April 2021.
He moved to South Australia, where he had been employed with Thomas Foods to date and ongoing. He was employed as a project manager. The majority of his work was administrative or clerical, where he was in an office for the majority of his days.
The only noise he was exposed to was occasional drilling, for around half an hour once or twice a week maximum. He was not in operation of the drill and was several metres away.
His solicitors advised him that Inghams accepted provisional liability for hearing aids, which was disputed after attending Dr Tomich.
He first noticed hearing loss occurred slightly at Master Foods. He was unaware this was due to occupational noise exposure, so he did not investigate same.
In November 2021, he consulted Specsavers Audiology (Specsavers) because he was experiencing difficulty in his day-to-day life, from inability to hear clearly and in particular situations. Following this hearing test, Specsavers advised him of their measurements and suggested his hearing loss may be due to exposure to noise in employment.
He instructed Turner Freeman Lawyers (Turner Freeman) to investigate for him. They arranged for him to be assessed by Dr Thandavan Raj on 14 February 2022.
The first time he became aware he had hearing loss that was related to his employment with Inghams was on 14 February 2022, when Dr Raj informed him that his degree of hearing loss was a direct result of exposure to loud noise during employment with Inghams.
His solicitors contacted him shortly after his consultation with Dr Raj, to confirm his entitlement associated with occupational hearing loss. He instructed them to make a claim.
While he had been aware of his hearing loss for some time, until he was referred to Turner Freeman for advice, he was not aware it was directly related to exposure to noise during his employment with Inghams.
As a result of his hearing impairment, he experienced difficulty communicating with his family and friends, who constantly complained about his hearing, and in particular, missing bits of conversations. He found himself always having to ask people to repeat themselves. This caused a lot of frustration.
He had difficulty watching television and talking on the telephone. His family constantly complained about this. Whenever he used the phone, he had to put the volume up high. He had to put the television up loud, and this annoyed his family.
He had difficulties when people were talking to him from a different room. He needed to be face to face to hear what they were saying.
He had particular difficulty in group situations and a lot of background noise. These problems had caused him much embarrassment and he had had to change his social life considerably. He was no longer comfortable in group environments, as he could barely hear the person talking and had to ask them to keep repeating themselves.
He had difficulties hearing in open spaces, such as shopping centres, and anywhere with background noise. He avoided pubs and restaurants because he could not hold a conversation. When he did go to a pub or restaurant, he found it extremely hard to hear the waiter and relied on his family.
He had not exposed himself to noise outside his employment.
He also had tinnitus in both ears. This had been the case for many years. It at times interfered with his sleep and concentration.
He was eager to receive hearing aids to assist communication with family and ease his tinnitus.

Evidence of first respondent

The first respondent’s lay evidence consists of an email from Mr/Ms Ajnesh Chandra to its solicitors, dated 6 October 2022.
Mr/Ms Chandra advised having spoken to “Louise”, and the applicant would not have worked more than 30% in the factory.
Other relevant points were that the applicant had a relatively short tenure and was off work for an extended period with a knee injury. He was very limited to administrative duties when he returned.
The machines the applicant described as loud, that is, compressors and boilers, were nowhere near either the office or the plant environment, where he described spending his time. They were outside the plant in separate areas to which he would have had very limited exposure. He may have attended them once per week for a very limited period.
The email attached a schedule that showed the applicant was employed for a total of 86 weeks, of which he was onsite for 72.62 weeks.

Evidence of second respondent

The second respondent has placed in evidence an email from Mr Toby Webb at Mobile Screening Pty Ltd (Mobile Screening) to [email protected] dated 23 August 2019. It attached “the hearing test results from testing carried out this week”.
The email attached the applicant’s hearing assessment report, dated 20 August 2019. His company is described as “Inghams”, with the address Lisarow. The box marked “History of hearing troubles” is not ticked, and there are no comments.
The test result is “considered BELOW NORMAL for your age”. (Capitalisation in original).
The box marked “referred medically” is not ticked, and “further actions” include the next test on 20 August 2021 and next training on 20 August 2023.
The second respondent also relied on what is described as an employee report card from Mars Food Australia. I infer that this organisation was Master Foods.
This report shows that the applicant underwent seven hearing tests between 11 June 2008 and 12 March 2014. The key below the table shows that all but the last test was a routine test. The last test, only a month after the previous one, is recorded as a retest. The key includes “C = Compensation”, but none of the applicant’s tests is recorded as “C”.

Medical evidence

Specsavers Audiology

Specsavers “visit notes” record on 25 October 2021, “hearing check”, “unassigned”, and that the entry was created by Susan Kirkham.
It appears that what follows may have been recorded by Ms Kirkham, because it is noted that the “customer” attended alone. He could only do Mondays and Fridays in the late afternoon. “Mondays booked at that time for the next few weeks. Booked afternoon apt with Lucy client aware”.
Ms Kirkham recorded “Manufacturing. Australia 12 years. Worked for MARS UK and Australia.” The applicant had had his hearing tested over the years. He knew he had hearing loss and hearing difficulties. He had had tinnitus in the last few months. He was “keen to look into WC claim”.

The question as to whether there was a history of noise exposure at work is answered “yes”, as is the question as to whether there was discussion of a potential WorkCover claim. A further appointment was required.
The applicant attended for hearing assessment on 5 November 2021. The record of his attendance was created by Ms Lucy Cooper.
Ms Cooper recorded that the applicant had spent most of his life working in “food factory”. He was currently building a food factory – there “can be some noise”. Alternately, he would be working in that factory building.
The applicant struggled “in areas with background noise – pick up beginnings of conversation and as goes, certain people/tones – TV”. He had occasionally a little tinnitus when he was tired, possibly worse on the right. He had not noticed a change in his hearing.
Ms Cooper reported to the applicant’s solicitors on 5 November 2021.
The applicant had attended that day for a hearing assessment, with a view to obtaining hearing aids.
Specsavers had assessed the applicant with binaural hearing loss (BHL) of 18.9%. Hearing aids had been recommended.
Specsavers asked the applicant’s solicitors to contact Mr Young to discuss making a workers compensation claim.

Dr Thandavan Raj – Ear, nose and throat surgeon

Dr Raj was qualified by the applicant and reported first on 1 April 2022.
Dr Raj recorded a history that the applicant had had a hearing loss for at least 12 years. While working for Master Foods in Australia between 2008 and 2010, he had one or two audiograms that showed some industrial deafness. His hearing had deteriorated, and he had difficulty understanding words in the presence of noise. He had to have the television quite loud, and his family and friends complained about his hearing loss. He had occasional tinnitus, which did not bother him.
There was no relevant medical or family history, the applicant had no hobbies that exposed him to noise and had not been in the military.
Dr Raj set out the employment history of which the applicant has given evidence. He opined that, for noise exposure, all the jobs are considered together.
The applicant was employed in food factories, where much of the noise was from machines processing various foods and packaging. There were processors, mixers, fillers, and compressors in the chicken enterprises, which were all noisy. Hearing protection had been worn regularly since the applicant first started in the United Kingdom (UK).
Dr Raj diagnosed the applicant with industrial deafness. He opined that the noise to which
Mr Young was exposed during his employment with Inghams was of such a nature that would cause boilermaker’s deafness or another deafness of similar origin.
Based on the history he obtained from the applicant, Dr Raj opined that the tendencies, incidents and characteristics of his employment with Inghams were such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.
Dr Raj assessed the applicant as having 6% whole person impairment (WPI). Hearing aids would assist him. Much of his hearing loss was due to industrial deafness. Therefore, hearing aids would be considered reasonable and necessary [sic] due to the injury. Thus, industrial deafness materially contributed to the requirement for hearing aids.
Dr Raj again reported on 31 August 2022, having been asked to comment on the evidence of Inghams.
Dr Raj opined that point two in the letter from Inghams’ solicitors (which appears to be a reference to the s 78 notice) appeared to be correct, as per his history, the applicant’s last noisy employer was Cordina.
The applicant’s statement gave a different noise history than Dr Raj obtained during the initial consultation. “[A]s per the statement”, it was much less.
Dr Raj recorded the differences as:
·        there being conflicting information about noise exposure at Master Foods UK. He assumed that 50% of the time was noisy equalled 10 years.
·        Noise exposure at Master Foods Australia was 50% and equalled three years.
·        Noise exposure at One Harvest was 50% and equalled six months.
·        Noise exposure at Inghams was 50% and equalled six months.
·        The last noisy employer was Inghams. Dr Raj presumed the applicant’s exposure was 100%, and equalled four years until 2021.
·        The total noise exposure added up to 18 years, “as per his statement”.
Dr Raj opined that the applicant’s industrial deafness had developed over 18 years of noise exposure. All his employment, when he was exposed to noise, contributed to his noise injury.
Assuming that the applicant’s 18 years of noise exposure did cause some quantum of noise injury, the six months of exposure at Inghams, “as per the information available”, would have exposed him to levels of noise that would be considered of a nature sufficient to cause industrial deafness.
Dr Raj opined that the cause of the applicant’s injury was noise exposure over 18 years. His current statement confirmed that he was employed by Inghams “(para 25, 26 31)”. His last noisy employer was Inghams Enterprises.
Dr Raj was asked to refer to the report of Dr John Tomich, who was qualified by Inghams.
Dr Raj opined that six months of noise exposure at Inghams, or even three years at Cordina, would not individually produce sufficient cochlear cell damage for hearing loss to be measurable in an audiogram. He agreed that the production of the audiogram dated 2014 would clarify the noise injury since the applicant left Master Foods. It was quite likely that the noise exposure in the next seven years may be inadequate to produce any measurable noise injury. No audiometry could confirm that the noise exposure at Inghams would have caused injury, as the exposure was too short to produce a measurable hearing loss.
Dr Raj disagreed that the need for hearing aids required two other independent opinions. The need was based on the audiogram and the patient’s disability. If, as per Dr Tomich’s assessment, he had diagnosed industrial deafness in the higher frequencies, which do cause a disability, the need for hearing aids would be obvious. No independent opinion was required for that assessment “either”.
Dr Raj agreed with Dr Tomich’s assessment of the need for hearing aids based on 40-50dB loss at 3,000-4,000Hz, because a 30-40dB loss of hearing in the higher frequencies can cause hearing disability.
Dr Raj’s final report is dated 21 November 2022.
Dr Raj opined, based on the applicant’s history at the initial consultation on
14 February 2022, and paragraphs 19-22 of his statement dated 2 August 2022, his employment with Cordina had the tendencies, incidents and characteristics to give rise to the risk of boilermaker’s deafness.
Dr Raj expressed the same opinion, based on the applicant’s initial history and on paragraph 16 of his statement, about Mr Young’s employment with Inghams.
Based on the history in paragraphs 26 to 31 of the applicant’s statement, Inghams was the last noisy employer.

Dr John Tomich – independent medico-legal consultant – otorhinolaryngology

Dr Tomich reported on 15 June 2022.
Dr Tomich recorded a history of progressive hearing impairment that commenced in 2008. The applicant had not acquired hearing aids. There was occasional tinnitus that did not impact on Activities of Daily Living.
The applicant provided a history of having worked as a maintenance engineer in the UK from 1987 to 2008, and subsequently in Australia. He alleged exposure to potentially hazardous noise related to processing food, in particular poultry, compressors, and boiler rooms. He had worn hearing protection throughout.
Dr Tomich recorded the applicant’s recent employers as:
·        Thomas Foods (South Australia) – 12 months. Onsite/meetings ratio of 70/30.
·        Inghams – two years. Onsite/office ratio of 50/50.
·        Other New South Wales employers included One Harvest, Cordina and Master Foods (Australia) from 2008 to 2014.
·        Master Foods (UK) from 1987 to 2008.
The applicant had serial audiometry in 2014 at Master Foods. He was diagnosed with diabetes in 2021 and was on medication.
Dr Tomich reviewed documents that had been provided to him, and which he listed as:
·        Report of Dr Raj dated 1 April 2022, which he commented was based on audiometry undertaken on 5 November 2021, presumably by Specsavers.
·        Specsavers audiology dated 5 November 2021.
·        SWP 4 – Ammonia Plant Charging.
·        SWP 6 – After hours maintenance of refrigeration plants.
·        SWP 7 – Investigation of ammonia leaks.
·        SWP 10 – Cleaning policing pond sewer filter.
·        SWP 11 – Dam and DAFF procedures.
·        SWP 3 – Ammonia Oil Purge.
·        Lisarow General No 14 Housekeeping.
·        Duty Statement – Site Engineer.
·        Duty Statement – First Aid Attendant.
Dr Tomich performed an audiometric examination. He opined that the applicant had a noise-induced hearing loss and tinnitus that could be attributed to the whole of the previous industrial noise exposure over both the UK and Australia. It was possible that his early onset diabetes was contributing towards this loss, but it was impossible to proportion [sic].
Without relevant serial audiometry, it was impossible to apportion the loss amongst various employers, with particular regard to the applicant’s employment at Inghams. Referring to
s 323 of the 1998 Act, Dr Tomich indicated a preference for obtaining a copy of the applicant’s 2014 audiometry, following which he would submit a report as to whether his employment with Inghams was capable of causing a noise induced hearing loss.
Dr Tomich preferred his audiogram to that of Specsavers. Based on this, he assessed BHL of 7.3%, which equated to 4% WPI. He noted that this was subject to him sighting the 2014 audiometry, and any decision regarding a s 323 deduction should await that sighting.
Dr Tomich concluded that the applicant’s compensable noise induced hearing loss probably warranted the fitting of appropriate binaural hearing aids, and if found to be effective, their purchase could be contemplated. He recommended that two independent opinions be sought prior to a final decision.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore refer to the main points.

Applicant

The applicant referred to his statement evidence. The evidence of Inghams, of hearing tests conducted between 2008 and 2014, he submitted took matters little further, except that it may be seen that he obviously had some hearing loss at the time.
The applicant submitted that the real question is whether his employment with Inghams had the necessary tendencies and characteristics, such that there would be a real risk of the injury of occupational hearing loss.
The applicant submitted that the evidence in relation to noisy employment was his evidence and the medical evidence. No one has put on any noise testing, but it was not needed. In contrast to his employment at Inghams, he was not currently in a noisy environment.
The applicant submitted that Dr Tomich was provided with documents that were not before me. There was no contradictory evidence to his evidence, and the noise to which he was exposed, primarily with Inghams and Cordina.
The applicant relied on the evidence of Dr Raj. There is some confusion in his second report, but he submitted I would rely on his first and third reports. He submitted that one of
Dr Tomich’s tasks was to determine the last noisy employer, and it seems to be implied that Inghams could be a last noisy employer.
The applicant submitted that Dr Tomich had asked for the 2014 assessment of hearing loss, which has been put before me, but it was never referred to him. He submitted that that is because it wouldn’t have helped the second respondent.
The applicant submitted that I would be persuaded, to the Nguyen[1] standard, on the balance of probabilities, that he has noise-induced hearing loss, that he was exposed to employment in which there was a real risk of sustaining the injury of occupational hearing loss, and the last noisy employer was Inghams. If I were against him on that submission, it would fall back on Cordina.
[1] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
As for the reasonable necessity of medical treatment, the applicant submitted there was no evidence before me that it was not reasonably necessary. He submitted it was not necessary for my task that there be two independent opinions. He referred to his evidence about the impacts of the injury.
The applicant referred to Diab v NRMA Ltd[2] and the matters listed therein. It “ticks all the boxes”, addressing the criteria in Diab and Rose.[3]
[2] [2014] NSWWCCPD 72 (Diab).
[3] Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).
As regards “notice” and “claim”, the applicant referred to his statement. He relied on Unilever Australia Ltd v Petrevska.[4] He submitted there was no delay in making the claim or notifying the injury.
[4] [2013] NSWCA 373 (Petrevska).
In reply to the respondents, the applicant submitted that Dr Raj had taken an extensive employment history. He is an expert, a specialist in assessing occupational noise exposure, and we can assume he has used his expert knowledge in coming to his conclusion.
The applicant submitted that the only visit in the Specsavers documents that is dated is
5 November 2021, which accords with what he said in his statement as to when he attended. The notice of injury is dated 16 December 2021, and that is the relevant timeline.
The applicant submitted that nowhere in the notes does it say he has sensorineural hearing loss, or that it is compensable. At that stage, a claim is about to be investigated. There was no awareness, as required by Petrevska or Inghams Enterprises Pty Ltd v Jones.[5]
[5] [2012] NSWWCCPD 17 (Jones).
The applicant submitted there is no suggestion he was made aware of the results of the hearing test conducted by Inghams on 20 August 2019.
The tests from 2008 to 2014 are identified as routine. There is nothing in the employee report card for Master Foods to suggest the applicant’s hearing loss was compensable, that employment was noisy, or he was suffering a compensable injury. That is the case with the other material, and it was not in an employer’s interests to make that known to the applicant.
The applicant submitted that the documents did not take the question of his awareness any further, and they did not need to be sent to the medical expert he relied on. His statement very clearly addressed the “notice” issue.
The applicant submitted he had complied with s 261(6) of the 1998 Act and s 17(1)(a)(ii) of the Workers Compensation Act 1987 (the 1987 Act) which identifies the date of the injury as being the last date of employment with Inghams.
The onus is on the applicant, but he submitted that once I look at all the evidence and in detail at what the late documents show, I would not be troubled by them. They do not undermine his case. His evidence established that Inghams was the last noisy employer. Failing that, it falls back on Cordina, but his case is that Inghams is the last noisy employer.
The applicant finally submitted that I would be satisfied about the reasonable necessity of hearing aids.

First respondent

The first respondent made no submissions about whether hearing aids were reasonably necessary. Its submissions were focused on the issues of “notice”, and last noisy employment.
The first respondent referred to the hearing assessment report, done by Mobile Screening, which appeared to be dated 20 August 2019, and addressed to Inghams. The comments indicated that “the test result overall is considered below normal for your age.” It also referred to hearing loss assessments by Master Foods Australia from 2008 to 2014.
The first respondent submitted the applicant did not deal with this material in any real way in his statement. In fairness to him, it may be that he didn’t know the results of the testing, but we just don’t know. He presumably knew about the tests being done, but we don’t know whether he knew about the results, and what, if anything, he did when he found out.
The first respondent referred to Jones. It submitted that Deputy President Roche said there were two key things that need to be shown for a worker to be aware that he has received an injury to which s 17 of the 1987 Act applies. The first is that he’s got a hearing loss of such a nature as to be contracted by a gradual process, and the second is that employment has contributed to that hearing loss.
In the context of testing being done over many years, and all at the behest of his employers, the first respondent submitted that the applicant ought to have been aware that he had hearing loss that had been contracted by a gradual process, and that can be seen by the results over a period of time, and the fact it was being undertaken by his employers would suggest he knew or ought to have known the hearing loss had been contributed to by his employment.
The first respondent accepted that Jones and the Unilever cases say that each case turns on its own facts. It submitted that in circumstances where there is no real explanation or information by the applicant about what, if anything, he knew about this testing and what he thought about it at the time, that would cause concern in relation to whether he had complied with the notice requirements in ss 254 and 261 of the 1998 Act.
The first respondent submitted that notice of injury was given to it on 21 September 2022, in excess of three years since the applicant ceased work. In terms of the 2019 assessment that was undertaken when he was working with Inghams, we are still well outside a six month period, but even outside a three year period with it.
The first respondent acknowledged the provisions of s 261(4) of the 1998 Act, which might assist the applicant, but submitted there has been no explanation to suggest there was ignorance, mistake, or anything like that, which would cause me to rely on those provisions.
In terms of last noisy employment, the first respondent joined with the applicant’s submissions, insofar as they suggest the second respondent was the last noisy employer. It submitted that if I accept that employment with it was noisy, it followed that I would accept employment with the second respondent was noisy. In many respects, the description of the machinery the applicant was exposed to is almost identical.
The first respondent submitted Dr Raj had some confused history, which flowed from his first report, and which was incorrect on the applicant’s evidence. What is clear from Dr Raj’s reports is the applicant’s history of noise from machines, and Dr Raj’s conclusion that “based on the history … the tendencies, incidence, characteristics of the worker’s employment with Inghams are of such to give rise to real risk of boilermakers deafness”.
The first respondent submitted that satisfied the test in Dawson.[6] The applicant has given evidence that is uncontested. The second respondent hasn’t put on any evidence to suggest that’s not the case. The applicant wasn’t cross-examined. There is a medical expert who confirmed that to be the case. The first respondent submitted that would satisfy me in terms of the question about the last noisy employer under s 17(1)(a)(ii) of the 1987 Act.
[6] Dawson and others trading as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson).
The first respondent referred to the applicant’s submission about documents that were provided to Dr Tomich that don’t appear in the second respondent’s Reply. It queried the weight to be given to his opinion. His report doesn’t say anywhere that Inghams was not the last noisy employer or was not a noisy employer. He said he wanted some audiometry and information from earlier periods of employment, but there is no further report from him.

Second respondent

The second respondent endorsed the first respondent’s submissions regarding s 261(4) of the 1998 Act.
The second respondent disputed the first respondent’s submissions about noise. It submitted nothing should be made about there being no cross-examination. The case of Finney[7] deals with issues where there is fraud or gross misconduct being alleged. In ordinary cases, I would err if I said the lack of cross-examination had any bearing at all.
[7] Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13.

The second respondent submitted that the applicant had the onus of showing why he brought a claim outside the provisions of s 261 of the 1998 Act. It submitted I could not rely on his “glib statement” that it was only in November 2021 that he was experiencing difficulties following the hearing test and was advised by Specsavers that his hearing loss may be due to exposure to noise in employment, and he then instructed Turner Freeman to investigate.
The second respondent submitted this is contrary to the evidence. The applicant had seven hearing tests over six years, none of which was referred to in his statement. When it comes to awareness, he was silent about anything before November 2021.
The second respondent submitted that, more importantly, the applicant had had other hearing tests. It referred to the evidence of Specsavers that the applicant was keen to look into a claim, which it submitted was very important.
The second respondent also referred to Jones and Petrevska. It submitted that all the documents were addressed to the applicant, and he was made aware by the audiologists over many years that he had sensorineural hearing loss.
The second respondent submitted that the applicant carries the onus of proving that he was not aware without telling me about his earlier tests, and what his state of mind was, or his admission that he was keen to pursue a claim, and the audiologist saying it was a workers compensation type claim. It submitted I could not be satisfied, on the balance of probabilities, that the applicant has satisfied the onus, and he must fail, primarily under s 261 of the 1998 Act.
The second respondent submitted that the applicant also carried the burden of proof on the issue of noise. It endorsed the applicant’s submission that Dr Raj’s reports are very confusing.
The second respondent submitted that when the applicant saw Dr Raj on 1 April 2022, he had not provided any statement of evidence. The only evidence he gave to Dr Raj that was of true evidentiary value was the employment history.
The second respondent also relied on Dawson. It submitted it is necessary for a worker to present detailed evidence about the nature, volume and extent, and duration of the noise exposure, and for that evidence to be given to an expert for his or her opinion. That is what Mr Dawson did, that’s not what Mr Young did.
The second respondent did not accept there was a typographical error in Dr Raj’s second report, as he appeared to be very firm that the last noisy employer was Cordina. It submitted an important factor is that Dr Raj was given a much more dramatic account from the applicant’s subsequent statement.
The second respondent submitted that Makita (Australia) Pty Ltd v Sprowles[8] and Hancock v East Coast Timber Products Pty Limited[9] provide that an opinion must be based on a fair climate, in terms of evidence, and Dr Raj’s opinion is “all over the shop”. It is flawed ab initio, from his first report, because of the inadequate history.
[8] [2001] NSWCA 305.
[9] [2011] NSWCA 11.
The second respondent submitted that it did not have to worry about s 261(4) of the 1998 Act, because the applicant had not given any evidence for me to be satisfied that he escapes the provisions of s 261.
The second respondent submitted that the applicant could not satisfy me, on the balance of probabilities, that the tendencies, incidences and characteristics “et cetera” of his employment might be such as to give rise to a real risk of hearing loss.
The second respondent submitted that criticism was levelled at Dr Tomich because he had some documents, but he is an ear, nose and throat specialist. His opinion can be based on his examination, and regard can be had to it.
The second respondent submitted I have to make a determination about ss 254 and 261 of the 1998 Act and s 17 of the 1987 Act. It is not Dr Tomich’s job to tell me who the last noisy employer is. His task is to tell me whether the applicant is suffering from sensorineural hearing loss. He can tell me whether he considered any of the employment to be noisy, such that it would give rise to a real risk. It submitted that the report doesn’t really assist me.
The second respondent based its submissions on the applicant’s own case, on his own evidence, and submitted it did not pass the balance of probabilities test. His statement is unreliable, it did not address the matters contained in the second respondent’s late documents, which are critical to the threshold issue of awareness. In some respects, it submitted, that put an end to the matter.
The second respondent finally submitted that the applicant and his “legal people” had had access to its late documents but had chosen not to answer them. Perhaps more importantly, they have not provided them to Dr Raj. That deals not only with awareness, but also with last noisy employment. I would want expert evidence to analyse it to determine where the noisy employment might lie, and whether, when the applicant came to the second respondent in 2019, there was any deterioration in his hearing loss, such as to point to any kind of injury.

SUMMARY

Section 254 of the 1998 Act provides as follows:

“Notice of 254 injury must be given to employer

(1)     Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.

(4) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances--
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 ,
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”

Section 261 of the 1998 Act provides:

“261 Time within which claim for compensation must be made

(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

Section 17 of the 1987 Act provides:

“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,

(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e) in paragraph (d), the "relevant period" means--
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)--in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury--in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii) where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury--in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,

(f) where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g) where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.

(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.”

Notice and claim

I will deal firstly with what have been described as the threshold issues of notice and claim.
The applicant’s notice of injury is dated 16 December 2021. He was required to give each respondent notice of the injury as soon as possible after it happened, and before he voluntarily left its employ.
However, the applicant is entitled to recover compensation if he is able to establish that “special circumstances” apply. The onus is on Mr Young to establish that special circumstances, including the absence of prejudice, exist: Gregson v L and MR Dimasi Pty Ltd[10] and Westlake v Sydney Symphony Subscribers Committee.[11]
[10] [2000] NSWCC 47; (2000) 20 NSWCCR 520.
[11] [2009] NSWWCCPD 12.
As s 254(3) of the 1998 Act provides that “each of the following constitutes special circumstances”, even extreme prejudice to an employer is irrelevant if the applicant is able to prove that any other of the special circumstances applies.
Roche DP said in Zheng v Xie at [196]:[12]
“[Section 254] does not provide that prejudice to the employer is a defence against a late claim. It states that one of the special circumstances in which the failure to give notice of injury is not a bar to the recovery of compensation or work injury damages is where the person against whom the proceedings are taken has not been prejudiced.”
[12] [2011] NSWWCCPD 58.
Neither respondent has provided any evidence that it has been prejudiced by the late notice of the injury, and neither submitted that it had suffered any prejudice.
Each respondent relied on lay evidence, and the second respondent has had the applicant medically examined and relied on the evidence of an independent medical examiner. The first respondent has not relied on any medical evidence but has not submitted that it has thereby been prejudiced.
In my view, that is sufficient to establish that there are “special circumstances” that mean the late notice of injury does not represent a bar to the applicant recovering compensation.
However, as it is necessary that I also deal with the time in which the applicant made the claim, I need also to consider the provisions of s 261 of the 1998 Act.
Section 261(6) of the 1998 Act provides that, if the applicant first became aware that he had sustained an injury after it was received, the injury is taken to have been received when he first became aware. He was then required to make the claim within six months.
“Awareness of injury” is awareness of “injury” as it is defined by the legislation, not merely awareness of a physical problem: Heatcraft Australia Pty Ltd v Lapa[13] and Roads and Traffic Authority of NSW v McNally.[14]
[13] [2007] NSWWCCPD 27.
[14] [2006] NSWWCCPD 359 at [35]-[40].
The fact that the applicant may have been aware of diminished hearing for some, or even many, years, does not mean that he was necessarily “aware” that he had sustained an injury.
The applicant and respondents referred to the decision of Roche DP in Jones, where the Deputy President discussed the test for awareness of injury in boilermaker’s deafness cases. He stated that, in such cases, awareness of injury arises when the worker is aware firstly that s/he has sensorineural hearing loss (hearing loss of such nature as to be contracted by a gradual process), and secondly, that his/her hearing loss has been contributed to by employment.
Roche DP said (at [89]):
“[b]ecause of the insidious nature of boilermaker’s deafness, and lack of general knowledge in the community of its cause, awareness that a worker has received a s 17 injury will usually require specialised knowledge that will normally come from an appropriate expert in the field.”
Accordingly, a worker’s awareness of hearing loss, and of having worked in a noisy environment, are not sufficient. Roche DP also said:
“[i]t is neither appropriate nor reasonable to expect workers to ‘put two and two together’ (at [86]), as was put to the worker in cross-examination. Nor does the worker have to be aware that they have ‘a watertight case that is bound to succeed’ (at [87]).”
The test is an objective one, based on the individual worker’s knowledge at the relevant time, and each case turns on its own facts.
Jones was considered and applied in Petrevska. Macfarlan JA (Meagher JA and Tobias AJA agreeing) also held:
·        a worker does not have to be aware of all the matters necessary to make a claim before being aware that he or she has received an injury (at [20] and [21]);
·        awareness equates to the concept of knowledge. Section 261(6) refers to actual awareness, as distinct from constructive awareness (at [22]);
·        the cause of a worker’s gradual hearing loss will ordinarily be a fact of which the worker is not “aware” until he or she receives medical advice. The worker may have an opinion or belief that the hearing loss is related to the worker’s employment, but that is not sufficient. The “high level of assurance required for ‘awareness’ of its correctness will ordinarily require expert advice” (at [25]), and
·        the opinion of a medically unqualified worker about the cause of sensorineural hearing loss will rarely be of value, or amount to knowledge of that worker that his or her hearing loss has been caused by the worker’s noisy employment (at [34]).

The applicant’s evidence is that he was aware of hearing loss when he worked for Master Foods. He was not aware that it was related to occupational noise exposure, and he did not investigate it.
I do not believe it is necessary for the applicant to specifically adduce evidence to address either the hearing tests he underwent at Master Foods, or at Inghams.
The applicant underwent regular hearing tests while employed by Master Foods. However, they were described as “routine”, and a retest. Even if the applicant was provided with the results of the tests and had held the opinion or belief that his hearing loss was related to his employment (which is not his evidence), that would be insufficient to establish that he was “aware” of the cause of his hearing loss.
Similarly, all the testing at Inghams told the applicant was that his hearing was below normal for his age. No reason was advanced for this, and, again, even if the test caused him to hold the opinion or belief that his hearing loss was related to his employment, that would not mean that he was “aware”, as it was held to mean in Jones and Petrevska.
Specsavers recorded that the applicant was “keen to look into” a workers compensation claim. He may well have believed his hearing loss was related to his employment and wished to explore the option of making a claim, but, again, this was the opinion of a “medically unqualified worker”, which will “rarely be of value” or “amount to knowledge” that his hearing loss was caused by noisy employment.
It was not until the applicant obtained the expert opinion of Dr Raj that he became “aware”, in the legal sense, that he had sensorineural hearing loss that was caused by exposure to noise in his employment. Once he became so aware, his claim was made shortly thereafter.
The applicant did not fail to make a claim within the time specified in s 261 of the 1998 Act. It is therefore unnecessary to consider whether s 261(4) of the Act applies.

Injury

The applicant of course bears the onus of establishing that he has sustained an injury arising out of or in the course of his employment.
In BlayneyShire Council v Lobley,[15] the Court of Appeal quoted with approval from Tame v Commonwealth Collieries Pty Ltd[16] regarding the expression “employment to the nature of which the disease was due”:
“It is not necessary that the presence, or some aggravation, of the disease should be to some degree due to service with the last employer. I think that ‘employment to the nature of which the disease was due’ means an employment of such a kind as to involve a risk to the employee of contracting the gradual process which is disabling him.” (Tame at 272).
[15] (1995) 12 NSWCCR 52 (Lobley).
[16] (1947) 47 SR (NSW) 269 (Tame).
Cole JA said in Lobley:
“It follows from these authorities…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.” (At 64).
The applicant relies on the evidence of Dr Raj. Whilst there is an element of confusion demonstrated in his reports, in that he has at times opined that both Cordina and Inghams was the last “noisy employer”, his opinion is ultimately made clear.
Dr Raj was of the opinion that the applicant’s employment with both Cordina and Inghams had the tendencies, incidents and characteristics such as to give rise to the risk of boilermaker’s deafness. He correctly recorded in his final report that Inghams was the last employer in such employment.
The respondents referred to the authority of Dawson. The second respondent submitted that Dr Raj did not have the detailed evidence required for him to conclude that the applicant’s employment with Inghams had the tendencies, incidents, and characteristics such as to give rise to the risk of boilermaker’s deafness.
In Dawson, Roche DP said (at [44]):
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present 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 his or her 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. That is exactly what Mr Dawson did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried. The Arbitrator’s acceptance of that evidence discloses no error.” (Emphasis in original).
The second respondent submitted that the applicant had not done what Mr Dawson did, and Dr Raj’s first report pre-dated his statement evidence. However, Dr Raj obviously had access to the applicant’s very detailed statement when he provided his second report. He has referred to it, including specific paragraphs that he identified by number.
As was the case in Dawson, the applicant’s evidence as to the noise to which he was exposed was unchallenged. In my view, as was also the case in Dawson, that evidence, combined with that of Dr Raj (and indeed Dr Tomich) clearly discharged the applicant’s onus of proof. He has established that he has sustained injury, being a loss of hearing.
The applicant’s last employer in employment to the nature of which the injury was due was the second respondent. Pursuant to s 17 (1)(a)(ii), liability falls on the second respondent.

Reasonable necessity of medical treatment

The evidence as to the reasonable necessity of the medical treatment claimed, that is, the provision of hearing aids, comes from both Dr Raj and Dr Tomich.
Dr Raj opined that the provision of hearing aids was reasonable and necessary, which is a more stringent test than that provided for by s 60 of the 1987 Act.
Dr Tomich opined that the applicant’s compensable noise induced hearing loss “probably” warranted at least a trial of binaural hearing aids, but that two independent opinions should be sought. There appears to be no logical reason why yet further opinion should be sought. Both he and Dr Raj are experts in the appropriate specialty.
The applicant relied on the decision in Diab.
Roche DP held in Diab that the criteria of reasonableness include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose, that is:
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Roche DP said, however, that the “essential question remains whether the treatment was reasonably necessary”.[17]
[17] Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C.
Both Dr Raj and Dr Tomich agree that the treatment is appropriate. There is no suggestion that there is any alternative available treatment. Neither respondent has relied on the cost of the treatment as a reason to dispute liability, and the cost is relatively modest, although obviously not to the applicant. The treatment is likely to be effective, and both Dr Raj and
Dr Tomich accept that it is appropriate.
I therefore determine that the proposed medical treatment is reasonably necessary as a result of injury deemed to have occurred on 30 April 2021.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 140

3 April 2023