Mr Duryea makes a claim for noise induced hearing loss (NIHL) and tinnitus said to arise from employment with the Respondent, Electrolux Home Products Pty Ltd, his former employer. The Applicant seeks compensation in the form of the supply of hearing aids or reimbursement for the cost of hearing aids and lump sum compensation for non-economic loss. The application raises questions as to the correct assessment of his permanent impairment.
The Respondent points to differences in the whole person impairment (WPI) assessment of Dr Fagan with other results and says that if Dr Fagan's assessment is correct then the Applicant sustained an increase in his level of NIHL long after his employment with Electrolux ceased. The Respondent also questions Dr Fagan's assessment of 3% for severe tinnitus and says this is not supported by the evidence. It argues for an IMA assessment pursuant to s 121 of the Return to Work Act 2014 (the RTW Act).
[2]
The following matters are not controversial. The Applicant was some 63 years at the time of trial. Since 26 March 2008, he has been employed by ITI South Australia Pty Ltd (ITI) as a forklift operator. He works in a warehouse where timber and other building products are stored. He drives a 5 tonne Clarke LPG powered forklift to unload trucks and containers and he does not wear hearing protection to perform this work.
The Applicant has spent most of his working life in manufacturing settings. Between 1991 and 2007 he was employed by Electrolux Home Products Pty Ltd, the Respondent, at Dudley Park. He performed various roles including as a press operator, a forklift driver operating 2.5 - 3.5 tonne Toyota LPG powered forklifts to remove and replace dyes in and out of presses, and as a heavy press and dedicated dye setter. He says that he was exposed to noise of the heavy presses, even when driving a forklift.
Between 1994 and 1998, the Applicant owned and operated a small piggery located at Whitwarta near Balaclava. He helped his partner to run the piggery whilst he was working at Electrolux Home Products. He says that the pigs were intermittently noisy, squealing when he fed them in the morning which was his main task.
Prior to working at Electrolux in about 1990, the Applicant was employed by Mitsubishi Motors as a spot welder for about 9 months.
From about 26 February 1988, the Applicant worked for a period of about 9 months with Sealy International Pty Ltd as a process worker manufacturing plastic components for air conditioners. He worked on a production line near injection moulding machinery. He says that he did not wear hearing protection at Sealy International or Mitsubishi Motors.
In about 1977, the Applicant was employed at Hamilton Laboratories operating a tablet compression machine. He says when this machine stamped down, it created a loud clunk. He does not recall wearing hearing protection in that employment.
In 1976, the Applicant worked for RW Harrison for approximately 1 year as a labourer making tomato crates. He operated timber and wood cutting machinery, such as large bandsaws and circular saws, to cut down pine logs and a nail gun to make crates. He says that after his first shift he experienced a period of deafness in his ears such that he was unable to hear his mother speak to him after he had finished his shift. The next day he was provided with hearing protection which he wore for the remainder of his employment where possible.
On 7 November 2022 following an assessment by an audiologist, Joshua Dwinoven at Amplifon Salisbury Downs, the Applicant first became aware of an entitlement to claim workers compensation for noise related hearing loss. Following that consultation, it was recommended that he purchase hearing aids, and on 7 November 2022 his solicitors made a claim for compensation said to arise from his employment with ITI.
In a report dated 19 April 2023, ear, nose and throat (ENT) specialist Dr Kym Diamantis opined that the nature of the work performed with ITI was not capable of causing NIHL on the basis of noise level testing conducted by an occupational hygienist, Mr Paul Dewing. Dr Diamantis determined binaural hearing loss (BHL) at 3.6% and made no allowance for tinnitus.
In a determination of 4 May 2023, Employers Mutual Ltd, on behalf of the Return to Work Corporation of South Australia, rejected the Applicant's claim against ITI and that determination was not disputed.
[3]
On 27 April 2023, the Applicant made a further claim for pre-approval of the cost of hearing aids and non-economic loss against the Respondent Electrolux.
In respect of his claim for non-economic loss, the Applicant was assessed by ENT specialist, Dr Paul Fagan. In a report of 5 July 2023, Dr Fagan assessed the Applicant as suffering from a total binaural hearing impairment for losses between 2000-4000hz of 8.4% reduced to 7.4% after presbycusis correction, but in addition, a loading for tinnitus of 3%, giving an adjusted BHL of 10.4% and a WPI of 5%.
By determination dated 21 July 2023, the Respondent rejected the Applicant's claim for medical expenses and non-economic loss. Initially, the Respondent asserted that the Applicant's subsequent work with ITI as a forklift driver, contributed to his noise induced hearing loss such that ITI was the last employment during which the Applicant was exposed to noise capable of causing hearing loss. However, at the commencement of the hearing, the Respondent's counsel conceded that there was no evidence to support that position,[1] resulting in a concession that the claim for hearing loss should succeed against Electrolux,[2] and the Applicant was entitled to pre-approval for the reasonable cost of hearing aids. However, that was not the end of the matter.
The Respondent says that the assessment of Dr Fagan is not compliant and should not be relied upon, although by the end of the trial this criticism was diluted.[3] It also says that the history relied on by Dr Fagan is inconsistent with the history provided to the other ENT specialist, Dr K Diamantis at his examination on 19 April 2023. The Respondent questions the rating given to tinnitus by Dr Fagan, which is critical to the Applicant receiving a WPI percentage over the 5% threshold.
The Respondent points to the results of subsequent cortical evoked response audiometry and pure tone audiometry giving a lower BHL than that assessed by Dr Fagan, as illustrative of the inaccuracy of his audiometry.
It is helpful at this point to list the various audiology test results by means of a table so as to better understand the arguments put by each party:
[4]
The Applicant maintains that he suffers from NIHL and tinnitus, as diagnosed by both ENT specialists, Dr Diamantis and Dr Fagan. The Applicant asserts that he has the benefit of the evidentiary provision of s 9 of the RTW Act, and that once NIHL and tinnitus have been established, the hearing loss is presumed, in the absence of proof to the contrary, to have arisen from employment in which the Applicant was last exposed to noise, in this case Electrolux.
The Applicant says that the assessments of BHL and tinnitus by Dr Fagan are reliable and supported by the history given to Dr Fagan and are a proper exercise of his clinical judgment.
The only questions remaining are the level of the Applicant's WPI and his entitlements, if any, to a lump sum for non-economic loss. As part of that inquiry, I need to determine whether the assessment of Dr Fagan is in accordance with the RTW Act and the Impairment Assessment Guidelines (the IAG), or whether it is appropriate to order an independent medical assessment pursuant to s 121 of the RTW Act.
[5]
Much of the Applicant's evidence, both his affidavit and oral evidence, was in the end not critical to the matters that remained in dispute between the parties. One issue requires some explanation. In his affidavit of 3 April 2024, the Applicant referred to non-occupational noise exposure. He said that approximately 40 years ago, he had undertaken some recreational shooting with a .22 calibre and 223 rifle but he had worn hearing protection in the form of earmuffs. At some point, the Respondent became aware that the Applicant had in the past ridden motorbikes. This resulted in a flurry of additional evidence.
In a supplementary affidavit of 28 August 2024, the Applicant described that he had started riding motorbikes in about 1984, although there had been years when he did not ride motorbikes at all due to back issues. In 2012, he purchased a Yamaha R1 fitted with an after-market exhaust located under the rear seat above the rear wheel. He stopped riding the motorbike for a period approximately four or five years ago when suffering from issues with his lower back and sold that Yamaha at that time. In February 2024, he purchased a new Yamaha R1 1000 fitted with a modified exhaust, but he says that he has rarely ridden this motorbike since purchase, only travelling about 800kms. At all times when riding motorbikes he wore a full-face helmet.
Mr Paul Dewing, ergonomist and occupational hygienist, provided two reports contained in the Trial Book.[5] The first of these reports dated 17 March 2023 deals with sound level monitoring heat conducted at ITI, the Applicant's current employer. The second report dated 25 October 2024 relates to his research concerning noise levels emitted by a Yamaha R1 1000 motorbike.
The second Dewing report was put to Dr Fagan for comment. Dr Fagan also spoke to the Applicant on the telephone on 4 November 2024 to discuss his use of motorbikes. Dr Fagan took a history that the Applicant rode motorcycles only occasionally for a couple of hours every other week and occasionally on interstate trips. He always wore a full-face helmet and earplugs for longer interstate rides. Accordingly, Dr Fagan opined that the noise exposure on account of riding motorbikes was fairly minimal. Even so, he applied .2% deduction to the NIHL (binaural hearing loss) to account for this non-work related exposure, reducing it from 10.4% to 10.2% with tinnitus included.[6] This had no effect on the 5% WPI figure. This was not a matter pressed by the Respondent as requiring any further reduction.
[6]
To the layperson, the assessment of BHL by Dr Fagan, after deduction for presbycusis at 7.4%, (or 7.2% after taking into account non-work related noise), seems out of kilter with the other audiology results. This was put to Dr Fagan who was adamant that the results were within test/retest variation. He said that it was important to consider losses at the various decibel levels of kHz and that the variation can be up to 15 decibels.[7]
When the same matter was put to Dr Diamantis, he essentially concurred that firstly all the readings, apart from that of Dr Fagan, were comfortably within text/retest variation and if one considered the second highest at 4.6%, that was just within the test/retest variation which he described as three percentage points.[8]
A comparison between Dr Fagan's assessment of BHL at 7.2%, after the minor deduction for noise induced loss caused by motorbike riding, and the pure tone audiometry result from 9 October 2023 at 4.6% is within this three percentage point margin. That margin would be exceeded on a comparison between Dr Fagan's 7.2% BHL and the earlier assessment from Dr Diamantis at 3.6%, but this did not seem to trouble Dr Diamantis as seen in his response to questions in cross-examination.[9] Therefore there is a lack of expert evidence supporting the Respondent's contention as to the unreliability of Dr Fagan's assessment.
[7]
The principal issue of concern to the Respondent in respect of Dr Fagan's assessment, was his assessment at 3% for tinnitus in circumstances where Dr Diamantis had made no assessment for tinnitus. This difference appeared to be related to different histories obtained from the Applicant as to his symptomology.
In his affidavit of evidence, the Applicant explained that he struggled to hear speech across a distance, in groups and in the presence of background noise. He said this about his tinnitus symptoms:
[8]
I also suffer from a high-pitched noise or squeal in my ears, which sounds like a ringing. It is very bothersome. I cannot enjoy silence as there is always a noise in my ears. It is continuous. It is particularly noticeable and frustrating when it is quiet, when I am trying to sleep, or I am trying to speak with someone. The sound of speech sounds muffled to me. It prevents me from sleeping at night. My ears are never silent.[10]
[9]
In his first report of 5 July 2023, Dr Fagan recorded simply that the Applicant reported constant tinnitus, and his concentration is affected whilst conversing. He said that he exercised his clinical judgment to give a loading of 3% due to severe tinnitus. He referred to the examples from the IAG, in particular 9.1 and 9.3. He noted that Dr Diamantis declined to give a loading and that he had obtained a different account of tinnitus symptoms. He said that he had discussed this discrepancy with the Applicant and was confident that he had the correct description.[11]
Dr Fagan returns to this subject in his second report of 22 January 2024, noting that in contrast to Dr Diamantis, his questioning of the Applicant had revealed an impact on the activities of daily living including concentration, communication, and mood changes specifically frustration, irritation, and depression.
In Dr Diamantis' first report of 19 April 2023, he records "a minor degree of tinnitus but this has no impact on his ADLs".[12] In his second report of 16 August 2023, Dr Diamantis records that his notes reflected "no impact on his daytime socialisation, communication or other activities and did not impact his sleep. I would therefore consider tinnitus at 0%".[13] This obviously differs from the history taken by Dr Fagan.
In his oral evidence, the Applicant was cross-examined regarding this discrepancy. His affidavit of evidence fits with the history obtained by Dr Fagan. Under cross-examination the Applicant said he was unable to distinguish the cause of the difficulty that he had hearing in crowds between the hearing loss on one hand and the ringing in the ears on the other. He said that the ringing in the ears was almost constant but in different environments he notices it more. For example, in a quiet environment, he hears it all the time. It occasionally interfered with sleeping because it was annoying. It did not wake him up but stopped him from getting to sleep occasionally. He said that it did not affect his powers of concentration generally, it was the annoyance of not understanding people which he found embarrassing. The tinnitus was not affecting his concentration in the courtroom whilst giving evidence.[14]
The history taken by Dr Diamantis was referred to in his oral evidence. Dr Diamantis explained the meaning behind his handwritten notes and the questions put to the Applicant at examination.[15] Dr Diamantis explained that he had written "tinnitus minimal" and "daytime ADL was fine".[16] His questioning process was to ask whether or not the patient had tinnitus and how it affected the patient. Depending on the response, he would turn to the issues of sleep or daytime activities. This was the process he always followed.[17] In cross-examination, Dr Diamantis related that there were a number of questions which lay behind a tick to the comment "sleep onset fine".[18]
When the history taken by Dr Fagan regarding tinnitus and Dr Fagan's conclusions were put to Dr Diamantis, he maintained that he had asked questions about the effect of tinnitus on concentration and communication, and also maintained that the questions he asked were quite detailed.[19]
Dr Diamantis did not know of the view expressed by Dr Fagan that it was common for patients presenting with tinnitus for it to impact their concentration when they are in a discussion with others. He agreed that severe tinnitus would interfere with speech discrimination. He maintained that the almost invariable answer, as to whether or not it was the hearing loss or tinnitus that was causing the difficulty with speech discrimination, was hearing loss.[20]
Dr Diamantis said that it was difficult to give an assessment of tinnitus loading if he had been given the history taken by Dr Fagan, but he made an estimate of between 1 and 2 percentage points.[21]
[10]
The authorities are clear that I need to be persuaded that there are good reasons to depart from Dr Fagan's assessment and to order an assessment with an independent medical advisor pursuant to s 121 of the RTW Act.[22] I am not able to disregard the assessment made by the approved assessor (Dr Fagan) unless error is shown.[23]
Given the expert evidence as to test/retest variation, I am not persuaded there was any demonstrated error in the audiology. That leaves the assessment for tinnitus.
I consider that the Applicant was doing his best to assist the Tribunal in giving his evidence and gave honest answers to the questions put to him. I accept that he has difficulty in articulating and understanding the different effects and symptoms produced by the hearing loss on the one hand, and the tinnitus on the other. I accept that the history that he gave to Dr Fagan was accurate.
This however produces a difficulty for the assessor. Care must be taken not to conflate the symptoms produced by tinnitus with the problems relating to hearing loss, particularly when it comes to a consideration of the activities of daily living and especially discernment of speech. It must be remembered that the assessment required in the IAG is an assessment of severe[24] tinnitus on a scale up to five percentage points added to BHL.[25] This is to be contrasted with the chapters in the American Medical Association Guidelines (AMAG 5th Edition) relating to hearing loss which simply refers to the assessment of tinnitus.[26]
By comparing Mr Duryea's symptoms with the examples in the IAG, it seems to me the assessment of Dr Diamantis at an additional 1-2% for tinnitus is a better fit than Dr Fagan's assessment. However, to put this in perspective, even taking the figure for BHL after deduction for presbycusis at 7.2%, the addition of 2% for tinnitus takes the total to 9.2%, which still gives a WPI of 5%. That is the threshold for compensation. It is only with tinnitus at 1% in addition to the BHL that a figure of 8.2% total binaural loss would not reach the minimum 5% WPI required under s 58(2) of the RTW Act. Apart from the examples in the IAG, I have been unable to find any definition of severe tinnitus or any other guidance as to how it is to be assessed. The IAG at paragraph 9.11 says the severity of tinnitus is to be determined by the accredited assessor.
The AMAG 5th Edition describes activities of daily living. Included in the categories are communication, sensory function, and sleep.[27] There seems to be no disagreement that these are properly matters to be considered in respect to activities of daily living and used as such by Dr Fagan.
Whilst in the present case the difference between a 1% allowance for tinnitus and a 2% allowance for tinnitus is the difference between $14,635 in lump sum compensation and nothing, I am not persuaded that Dr Fagan in his exercise of clinical judgment in making an allowance at 3% for tinnitus is so unreasonable and lacking in foundation as to warrant interference by the Tribunal. This is especially the case when, if the assessment was at 2%, the Applicant's entitlement would be exactly the same.
This case is illustrative of the fine margins between reaching a WPI assessment at 5%, resulting in a reasonably significant payment of compensation, or only achieving 4% and no compensation. The difference is much greater than that between the monetary result of a 6% WPI as compared to 5% WPI.[28]
It is therefore of critical importance to all parties that assessors exercise particular care at these low levels of BHL to ensure accuracy and to explain the rationale for their opinions as to the allowance for tinnitus. If the assessor is aware of contemporary assessments which differ from his or her assessment but is of the opinion that the results are nonetheless within test/retest margins, the assessor should explain their view as to the degree of test/retest margin and why the various readings fall within that boundary.
I am not persuaded that Dr Fagan's assessment is in error or so lacking in conformity with the provisions of s 22 of the RTW Act and the IAG that the Tribunal should not accept his assessment and require a fresh assessment from an independent medical assessor pursuant to the provisions of s 121 of the RTW Act.
In accordance with the concessions made by the Respondent, I find that the Applicant has sustained NIHL and tinnitus and set aside the determination of the Respondent dated 21 July 2023. I find that the Applicant has a WPI of 5% resulting from his employment with Electrolux and that he is entitled to lump sum compensation pursuant to s 58 of the RTW Act. The Applicant is entitled to reimbursement for the cost of provision of hearing aids or pre-approval for the reasonable cost of hearing aids.
I will hear the parties as to the exact form of the orders.
[11]
[1] See Tr p 2.35. The transcript is in error at this point as the words from "Your Honour .." to the end of the paragraph were those of Mr Hanus. See also Tr p 70.3.