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[2003] SAWCT 1
General information, not legal advice.
Workers Compensation Tribunal (SA)
2003-01-07
Original judgment source is linked above.
1 In this matter Anthony Ernest Wood ("the worker") is in dispute with Royal Sun Alliance Workers Compensation (SA) Limited as agent for the WorkCover Corporation (both entities hereinafter referred to for convenience as "WorkCover") in respect of the quantum of noise induced hearing loss he incurred in the course of his employment with a number of employers the last of which was Aspect Packaging ("the employer"). The worker resigned from employment with the employer on 8 July 1999.
2 At trial there was no dispute that the worker had a substantial hearing loss and that in his last employment with the employer (and indeed at all material times) he was exposed to noise capable of causing noise induced hearing loss.
3 The unusual aspect of this case is that the worker's total hearing loss is the result of two types of loss namely conductive and sensorineural (sometimes referred to in evidence as neurosensory). His conductive loss is the result of a condition known as otosclerosis which is not work related. The sensorineural portion of the loss in the usual case would be attributed to industrial noise exposure. However, in this case it was acknowledged that his otosclerosis would also have contributed to the sensorineural loss although the extent of its contribution was open to debate. I will say more about that later.
4 On the hearing three medical practitioners gave evidence. Drs Krishnan and Matison both ear nose and throat surgeons and Dr Tomich who specialised in otorhinolargology. Of the three by far the most impressive was Dr Matison. Aside from the very favourable impression made on me by Dr Matison in the witness box I lack confidence in the evidence of Dr Krishnan generally speaking and in the evidence of Dr Tomich insofar as it goes to the matter of the quantum of the worker's noise induced hearing loss. Amongst my reasons for dissatisfaction with the evidence of Dr Krishnan are that he changed ground on the quantum of the worker's noise induced hearing loss beginning with an assessment of 47.6 per cent in June 1999 and ending with an assessment of 14.7 per cent in December 2000 based on testing carried out in September 2000 well over a year after the worker ceased work. In his first assessment Dr Krishnan was content to attribute all of the loss to industrial noise exposure. Indeed he specifically excluded any other cause for the loss other than exposure to noise (BD 39) when it should have been apparent to him that the worker suffered from otosclerosis and that a significant proportion of the loss was conductive. Moreover, unlike the other two witnesses Dr Krishnan's speciality was not the measurement of hearing loss but rather head and neck surgery.
5 My reservations as to Dr Tomich's assessment that the worker's hearing loss by reason of industrial noise exposure was 3.6 per cent flows from his concession in cross-examination that he did not strictly follow the relevant regulations in his assessment of the worker's hearing loss (tr 37, tr 38, tr 44). It is to be noted however that the audiogram Dr Tomich caused to have conducted in July 1999 and that conducted by Dr Matison in August of that year (both of course being very proximate to the time when the worker ceased work) were very similar.
6 As I mentioned earlier the only issue for determination in this case is the degree of the worker's noise induced hearing loss it being established that a component of his hearing loss is noise induced and that he was at material times engaged in work which involved exposure to noise. (See s 31(2) and Sch 2 of the Workers Rehabilitation and Compensation Act 1986 as amended "the Act").
7 In terms of onus of proof I consider the words of Mullighan J in WorkCover Corporation v Perre (1999) 76 SASR 95 at 101 are instructive:-
"... the position is relatively simple. The worker is required to prove that he has noise induced hearing loss and that he has been employed in work involving exposure to noise. The burden of proof then shifts to the Corporation or the exempt employer as the case may be."
8 It seems to me in light of the legislation and the dicta of Mullighan J in Perre (supra) it is incumbent on a worker seeking compensation in respect to noise induced hearing loss to establish that he has such a loss, the quantum thereof and the fact that he had been employed in work involving exposure to noise before the burden shifts to the Corporation or exempt employer to prove that the relevant employment did not contribute to the disability or any part thereof.
9 In this case, as I have said, my preference is for the evidence of Dr Matison who based his calculations on an audiogram conducted in August 1999 a little over a month after the worker ceased work.
10 I have no reason to believe that the audiogram was conducted other than as required by the regulations (indeed as noted earlier it was similar to one conducted for Dr Tomich in July 1999) and I am satisfied on the basis of the evidence of Dr Matison that he complied with the relevant regulation for the purpose of measuring the extent of the worker's hearing loss.
11 Dr Matison used as the basis for assessing the relevant loss the bone conduction result disclosed on the audiogram. All specialists were in agreement that this was the best if not the only method of assessing sensorineural hearing loss where otosclerosis was present. Dr Matison concluded that the worker's sensorineural loss indicated by the audiogram was 7 per cent which the regulation dictated be reduced by 1 per cent because of the worker's age. Absent any contribution from otosclerosis the resulting 6 per cent would be taken to be the worker's noise induced hearing loss.
12 However, all specialists were in agreement that otosclerosis would play some part in the worker's sensorineural loss although it was impossible to be accurate about the extent of its role. Thus, for example, Dr Tomich agreed that otosclerosis would have a "significant" "(a)lthough unquantifiable" effect on the worker's sensorineural hearing loss (tr 47). Dr Matison said at tr 54 that because in the worker's case the otosclerosis was "fairly advanced ... a significant proportion of that total could be due to otosclerosis". Later at tr 66 "there is a probability that a significant - a very small but significant - proportion of the neurosensory loss is secondary to otosclerosis". And finally as tr 67:-
" ... - the only thing I could say is that, if I wanted to - I was pinned down to a quantification it would be a small but significant proportion of the total.
Q But nothing to cause you to drop below a 5 per cent assessment of noise-induced hearing loss.
A Well, I had 6 so I could say that - if you wanted me to fish a figure out of midair, I could say maybe 1 per cent was due to otosclerosis."
13 Pursuant to Sch 3 of the Act "in the case of hearing loss, compensation is not payable by reference to this Schedule unless the percentage loss of hearing exceeds 5%."
14 Given the state of the evidence and in particular that of Drs Matison and Tomich as canvassed above I am not satisfied to the requisite degree that the worker's noise induced hearing loss exceeds 5 per cent.
15 In the circumstances the determination of WorkCover of 24 September 1999insofar as it relates to the worker's claim for a lump sum for hearing loss is confirmed.
NOTE CAREFULLY:
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
Wood
Workcover/Royal and Sun Alliance
(1999) 76 SASR 95