Agostino and Telstra Corporation Limited [2000] AATA 359 (8 May 2000)

Last Updated: 25 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 359

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/1022

GENERAL ADMINISTRATIVE DIVISION )

Re VINCENZO AGOSTINO

Applicant

And TELSTRA CORPORATION LTD.

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J R Vallentine, Member

Date 8 May 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

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

M T Lewis

Presiding Member

CATCHWORDS

WORKERS' COMPENSATION - permanent impairment - industrial deafness - suffers from sensorineural hearing loss and conductive deafness - whether sensorineural deafness aggravated by occupational noise - whether exposed to continuing industrial noise between 1987 and 1989 - whether deterioration in hearing caused by occupational noise exposure - whether hearing loss continued to deteriorate after cessation of noise exposure - permanent tinnitus - whether tinnitus caused by occupational noise exposure between 1988 and 1989

Safety Rehabilitation and Compensation Act 1988- ss 24, 27, 124

REASONS FOR DECISION

8 May 2000 Mrs M T Lewis, Senior Member Dr J R Vallentine, Member

1. This is an application made by Vincenzo Agostino ("the Applicant") for a review of a reconsideration decision of a delegate of Telstra Corporation Ltd ("the Respondent") dated 4 July 1997, affirming an earlier decision of 21 May 1997, that the Respondent is not liable to pay compensation in respect of industrial deafness and permanent tinnitus.

2. At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The following documents were admitted as evidence on behalf of the Applicant -

* Report of Mr Stanley C Stylis, ENT surgeon, dated 5 July 1999 (paragraphs 2, 3 and 4 only, on page 5) with addendum, being p 521 of a monograph written by Professor Victor Goodhill, University of California and Los Angeles (exhibit A);

* Bone conduction audiogram from Dr Stylis dated 22 September 1999 (exhibit B);

The following documents were admitted as evidence on behalf of the Respondent-

* Reports of Dr Raymond L Carroll, ENT consultant, dated 7 November 1997 and 28 November 1997 (exhibit 1);

* Copy of letter from Dr Williamsz to Dr Puglesi dated 23 July 1985 produced as part of clinical records in response to summons issued on Dr Williamsz (exhibit 2);

* Audiogram dated 3 March 1997 produced as part of clinical records in response to summons issued on Dr Williamsz (exhibit 3).

The Applicant gave oral evidence at the hearing with the assistance of an Italian interpreter. Dr Stylis was called by the Applicant to give oral evidence, and Dr Carroll was called by the Respondent to give oral evidence.

background

3. The Applicant was born on 9 February 1936. He was employed by the Respondent from 30 September 1963 to 19 March 1991, initially as a labourer and later as a line supervisor. In the course of his employment, the Applicant was exposed to the noise of jackhammers, air compressors, backhoes and other noisy equipment, as a result of which he suffered a hearing loss. On 10 July 1987, a delegate of the Commissioner for Employees' Compensation determined that the Applicant was entitled to lump sum compensation of $9,711.44 in respect of a hearing loss of 25.4%, under section 39 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") (T7).

4. By letter dated 6 June 1996, the Applicant's solicitor served on the Respondent a Compensation Claim for Permanent Injury signed by the Applicant on 22 May 1996 (T24, T22), in respect of industrial deafness and permanent tinnitus.

5. The Applicant has been examined by a number of ear, nose and throat specialists at the request of both the Applicant's solicitor and the Respondent. There is disagreement between the specialists about the cause of the Applicant's further hearing loss and tinnitus, and about the level of his impairment. It is common ground between the parties that the Applicant has severe hearing loss in both ears and that he is now suffering from mixed hearing loss, that is, sensorineural hearing loss and conductive deafness. It is also common ground that only sensorineural deafness is attributable to chronic noise exposure.

6. The Applicant did not mention tinnitus at the time of his earlier claim determined on 10 July 1987. The specialist reports record the Applicant as giving a history of tinnitus commencing in about 1990 or 1991.

7. On 21 May 1997 a delegate of the Respondent determined that the Applicant suffers from a 37.7% binaural hearing loss, which amounts to 18.85% whole person impairment. The Applicant had previously received compensation under the 1971 Act in respect of 25.4% binaural hearing loss, which amounts to 12.7% whole person impairment. Thus the increase in whole person impairment was 6.15%, less than the 10% impairment required under s24(7) of the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act") for compensation to be payable for permanent impairment.

8. The claim for tinnitus was rejected by the Respondent because tinnitus became permanent prior to the commencement of the 1988 Act (T37). It was also noted that there was no provision for a lump sum payment under the 1971 Act in respect of tinnitus (T38).

9. On 4 July 1997, after an internal review, another delegate of the Respondent affirmed the decision. That delegate recorded the Applicant as beginning to suffer tinnitus in about 1981(T45, p.77) (which the Tribunal understands should read 1991), and concluded that he would have suffered from tinnitus at the date he was compensated in 1987 and that there was no evidence that tinnitus has become permanent after that date.

applicable legislation

10. The relevant provisions of the 1988 Act are:

s.24 (1) Where an injury.

(2) For the purpose of determining whether anComcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare under subsection (5).

(5) approved Guide.

(6) The degree of impairment shall be expressed as a percentage.

(7) Subject to employee under this section.

(8) Subsection (7) does not apply to any one or more of the following:

(a) the loss of the use, of a finger;

(b) the loss of the use, of a toe;

(c) the loss of the sense of taste;

(d) the loss of the sense of smell.

(9) For the purposes of this section, the maximum amount is $80,000.

s.27 (1) Where an impairment.

(2) The amount of compensation is an amount assessed byComcare under the formula:

($15,000 x A) + ($15,000 x B)

where:

A is the percentage finally determined by employee; and

B is the percentage determined by employee.

124. (1) Subject to this Part, employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under the 1971 Act.

(2) A person is not entitled to compensation underloss or damage:

...

...

(c) in any other case--under loss or damage was suffered.

(3) A person is not entitled to compensation underimpairment or death that occurred before the commencing date, if:

(a) the person received compensation of a lump sum in respect of that the 1971 Act; or

...

medical history

11. The Applicant had a hearing assessment and audiometry conducted in 1985 by Dr Trevor Williamsz, ENT surgeon, who documented a 23 year history of occupational noise exposure without prior history of otological disease, vertigo, head trauma or use of ototoxic medication (T4, p23). Dr Williamsz found 25.1% hearing loss on the right side and 33% on the left. He commented -

...the threshholds are elevated through all the frequencies tested and this pattern of hearing loss cannot really be identified in that produced by loud noise. An unknown factor has produced a hearing loss.

12. Dr Williamsz acknowledged that because of the Applicant's exposure to loud environmental noise for over 22 years, particularly from jack-picks, it was reasonable to apportion part of his hearing loss to that source. However he was unable to estimate the percentage contribution.

13. The Applicant next underwent audiometric testing on 18 February 1987 (T4, p8) when Dr Khan assessed his total hearing loss at 35.3%. On this occasion there was evidence of both sensorineural and conductive deafness, with the former predominating. The conductive component was noted to be slight. It was caused by collapse of the external ear canal that was not work-related.

14. Like Dr Williamsz, Dr Khan made no reference to any history of tinnitus. He found a frequency pattern of hearing loss that included low tone loss. He also said (T5, p26) -

Although this is not a typically noise-induced hearing loss, Mr Agostino has been exposed to industrial noise for 23 years and although the audiogram is unusual for a noise-induced hearing loss, it is not uncommon in cases of long exposure to industrial noise. There are numerous references to flattening of the audiogram involving other frequencies than 4000 Hz.

Dr Khan listed 5 references relating to flattening of the audiogram caused by noise exposure. He assessed the compensable sensorineural component of the Applicant's deafness to be 25.4%.

15. In the determination issued on 10 July 1987 the Applicant was granted compensation under the 1971 Act for 25.4% loss of hearing, equivalent to 12.7% whole person impairment.

16. From July 1987 until about November 1989 the Applicant continued to work in a noisy environment. In evidence he said that he wore protective ear-muffs during this time whenever he worked with explosives, compressors or jackhammers. However he did not wear protection at all times - there were periods of unprotected exposure to the noise of semi-trailers and other highway traffic. He said that for the three months he was based at the Tempe depot he was also exposed to the noise of jets landing at Mascot airport.

17. It was agreed between the parties that although the Applicant continued in the employ of the Respondent until 1991, he had no work-related noise exposure after November 1989.

18. There is no evidence of audiometric assessment after the Respondent's determination in 1987 until the Applicant was seen by Dr Scoppa, ENT surgeon, on 10 May 1993. The Applicant said that Dr Scoppa spoke with him in Italian. On that occasion Dr Scoppa found bilateral high tone sensorineural deafness of 41.2%, after age correction. He also found a perforation in the right eardrum, causing superimposed conduction deafness on the right side (T11, p34).

19. On 7 October 1995 the Applicant was seen by Dr Stanley Stylis, ENT surgeon, who found bilateral mixed hearing loss (T13, p39). Dr Stylis accepted that the sensorineural component was related to exposure to industrial noise, given the Applicant's exposure to an enormous amount of noise over a long period of time.

20. Audiometry at that consultation was apparently difficult. In his oral evidence Dr Stylis said that he now believes the actual figure he obtained in 1995 for binaural sensorineural loss (37.7%) was wrong. However, he considered that this went only to the extent of the deafness - not to the conclusions he reached about its cause.

21. Dr Williamsz reviewed the Applicant on 3 March 1997 (T35, p63), by which time there had been significant further deterioration in his hearing. Dr Williamsz noted a 5 year history of intermittent yellow discharge from the right ear and clinical examination showed subtotal perforation of the right eardrum. Dr Williamsz assessed binaural hearing loss corrected for age at 68.4%. On the right there was mixed loss and on the left a sensorineural deficit across all frequencies.

22. In a determination dated 21 May 1997 (T37, p67) a delegate of the Respondent rejected the Applicant's claim for further lump sum compensation for increasing deafness. The Respondent relied on the assessment of Dr Stylis of 37.7% binaural loss that gave the Applicant an increase in whole person impairment of only 6.15%.

23. At the request of the Respondent, the Applicant was examined by Dr Raymond Carroll, ENT surgeon, on 6 November 1997, in the presence of an interpreter. Dr Carroll found scattered opacities in the left eardrum and a dry perforation of the right eardrum. Audiometry revealed bilateral sensorineural hearing loss with a superimposed conductive deafness in the right ear. There was a moderate low tone sensorineural deafness which Dr Carroll felt could not be attributed to noise. The binaural sensorineural hearing loss was 62%, but in his opinion only 23.7% was attributable to occupational noise exposure. In Dr Carroll's view the noise-induced component of the deafness had not progressed since 1988, because noise-induced hearing loss does not progress in the absence of continuing exposure to injurious noise levels (exhibit 1).

24. In Dr Carroll's view there has been no significant sensorineural hearing loss attributable to occupational noise since 1987. His opinion was that the rate of acquisition of noise-induced hearing loss slows with time despite constant exposure. He opined that most hearing loss takes place in the first 5 to10 years of exposure. Dr Carroll did not expect that the Applicant would have doubled the rate of his noise-induced loss in the last 2½ years of a 23 history of exposure, nor was there a history that noise exposure in the period 1987 to 1989 was protracted.

25. Dr Carroll referred to other causes of sensorineural loss including presbyacusis (age related loss) and idiopathic sensorineural deafness, both of which give a relatively even loss across all frequencies (a "flat audiogram"), rather than the predominantly high tone loss caused by noise.

26. On the subject of individual susceptibility to noise, Dr Carroll said that while the basis of an individual's susceptibility is unknown it is not thought to vary over time and it does not vary from one ear to the other. One does not have one susceptible ear and one "hard" ear.

27. Dr Stylis agreed that the flat curve first seen in Dr Williamsz' audiogram in 1985 did not show a noise deafness pattern. Similarly, the NAL audiogram of February 1987 (T5, p24) was unusual. Nevertheless, he said, flat curves demonstrating relatively even elevation of hearing threshhold across the frequencies do occur.

28. Dr Stylis did not believe that impairment of nerve conduction could be explained in the Applicant's case except by noise. He said it was generally accepted that noise-induced hearing loss does not progress once the exposure ceases, although he said there is some expert opinion to the effect that it is possible that further deterioration can continue.

29. Dr Stylis considered that the Applicant's exposure to noise continued after 1987 even with the use of earmuffs. He also considered that the substantial increase in the Applicant's hearing loss of 25.4% from February 1987 could be caused by a sensitivity to noise that "somehow altered during that time". He noted that the Applicant had not been well and that he had had a stroke and a heart attack. These factors could make the ear more vulnerable to noise. At another point in cross-examination however, Dr Stylis agreed that it was difficult to explain the extent of the Applicant's hearing loss after 1987 in relation to industrial noise.

Tinnitus

30. In his report of 31 March 1994, Dr Scoppa does not mention tinnitus. The first reference in the documents is in Dr Stylis's report of 7 October 1995, in which he noted that tinnitus was present all the time.

31. On 23 April 1997 Dr Williamsz recorded that the Applicant's tinnitus had been constant during the 20 year period of his hearing deficit (T35). However, in a later report in June 1997, having checked with the Applicant, Dr Williamsz revised the stated period of tinnitus to 5 to 6 years (T41). Indeed Dr Williamsz admitted that he had assumed that the Applicant had experienced tinnitus throughout the same period as his hearing defect.

32. The Applicant's evidence was that he first began to suffer from tinnitus in or about 1991. He also provided that history to Dr Carroll (exhibit 1), who noted that the tinnitus commenced in 1990 or 1991 after noise exposure had ceased, and since that time the tinnitus has worsened. On the basis of this history Dr Carroll concluded that it was more likely that the tinnitus was caused either by presbycusis or other non-work related hearing loss rather than by occupational noise.

33. Under the 1988 Act tinnitus became a separate compensable injury. In a determination dated 21 May 1997 (T37) a delegate of the Respondent rejected the Applicant's claim for permanent impairment for tinnitus on the basis that the condition had been present for many years and had therefore become permanent prior to 1 December 1988. As it preceded the commencement of the 1988 Act it was therefore not compensable. The delegate had regard to Dr Williamsz' report of April 1997 but not his subsequent report. A reviewable decision dated 4 July 1997, relying on Dr Williamsz' first report, again concluded that tinnitus had become permanent prior to the commencement of the 1988 Act and was therefore not compensable.

34. In a report dated 16 March 1997 Dr Stylis says of the tinnitus (T34) -

He has severe hearing loss and he is expected to have tinnitus. He has had marked hearing loss for donkey's years and I would not be surprised if he has had tinnitus for donkey's years. Even if the tinnitus is of more recent origin you would not be able to divorce it from the hearing loss. As noise plays a part in this hearing loss then the matter becomes irrelevant.

submissions

Applicant

35. It was submitted that of all the doctors who have assessed the Applicant's hearing loss, only Dr Carroll regards the Applicant as being under the 10% threshold. It was submitted that Dr Carroll was in fundamental disagreement with a number of people on an important issue in this case, that being the flattened effect of the audiogram. He gave his evidence in a stringent manner and fairly conceded that his view ranged in opposition to no fewer than seven people on that point.

36. It was submitted that weight should be given to the opinions of Dr Scoppa, Dr Williamsz and Dr Stylis, all of whom assess the Applicant to be over the threshold test. From February 1987 to November 1989, it was evident the Applicant was exposed to significant levels of industrial noise. Counsel directed the Tribunal's attention to a statement made by Dr Stylis to the effect that hearing can be severely damaged by one exposure to a very loud noise. In this case, it was submitted that the evidence given by the Applicant was that he worked beneath large aeroplanes landing near Mascot without earmuffs and he was exposed to truck noises for a "good" period of time. Despite the Applicant's difficulties in informing the Tribunal of other matters, it was submitted that the evidence given about the 1987/89 period regarding the work place was given in a truthful manner and amounted to a fair reflection of what he was experiencing at the time.

37. It was submitted that on the evidence the Applicant was not wearing ear- muffs for a portion of the time when he was working in very noisy environments. There is a certain consistency as described by Dr Stylis in the audiography, audiometry and bony audiometries, to support the submission that there has been an obvious increase in the Applicant's hearing deficit. The Tribunal was urged to favour the medical opinions given by Dr Stylis, Dr Khan and Professor Goodhill, all of whom suggest that the flat effect on the audiogram can be produced by exposure to noise and in these circumstances significant exposure over a long period of time.

38. It was submitted there was no evidence that there is significant infection causative of the damage to the cochlea. In any case, even Dr Carroll was prepared to concede it was more probable that cochlear damage was caused by noise than it was by infection. Dr Stylis similarly suggested the perforation and minor problems he saw were not sufficient to cause cochlear damage. It was submitted that consequently the cochlear damage was to be equated with noise exposure. It was submitted that if it were the case, which it is not, that there was some identifiable and serious mastoid infection that could have been productive of cochlear damage, the Respondent's argument would have rested on firmer foundations.

39. In terms of identifying other factors that could be attributable to the Applicant's sudden hearing deficit, it was submitted that the ageing process is not a factor that the Tribunal should ascribe to the Applicant's hearing loss, as suggested by Dr Carroll. It was submitted that while this possible cause was superficially attractive, in reality the damage originally found was clearly noise related, as a matter of probability, regardless of how atypical that rapid deficit was. In the Applicant's case, it was submitted the rapid deficit was caused by continual exposure in circumstances where there was still, as a matter of common sense, proximity to very loud noise. Counsel for the Applicant raised rhetorically the question of how age could be such a significant factor when the percentage allowance for presbycusis was only 1%. It was submitted that it was inherently unlikely that a person in 33 months would have suffered such a significant reduction in hearing by reason of having aged 33 months, given the context of years of exposure to high levels of industrial noise faced by the Applicant.

40. It was submitted the "common sense" reasoning adopted by Dr Stylis, based on the notion of individual susceptibility to hearing loss, is to be preferred when reviewing this case. Dr Stylis was of the view that if a person has been ill, and he or she has been exposed to a noise for a long period, then that could lead to a heightened susceptibility to hearing loss. It was submitted that the Applicant was one such susceptible person. Further, it was argued that the Applicant should not be denied an award for permanent impairment because Dr Carroll has in effect suggested that "atypical equals not probable". Counsel for the Applicant agreed it is atypical for a person to suffer such a radical deficit in a short period of time; however that does not mean that the noise was not probably the cause of it. It was submitted that arguments to the contrary do not take into consideration the idiosyncrasies of individuals in light of common sense reasoning that some people are simply more susceptible to hearing loss than others.

41. With respect to tinnitus, it was submitted that 1991 was the start of the tinnitus recognition factor. Although the cause of tinnitus is uncertain, it was submitted common sense demands on the balance of probabilities, consideration of the Applicant's work context over a number of years and the fundamental importance and centrality of noise in his life. Consequently, tinnitus can then be connected with work. It was submitted that the medical evidence before the Tribunal does not suggest that the Applicant's tinnitus was not related to work; rather the evidence indicates that tinnitus is an uncertain area but a number of doctors have had no difficulty in making an assessment of 5% for tinnitus. It was submitted that inherent in that statement is the making of a causal connection between tinnitus and employment.

Respondent

42. It was submitted that there is no work-related hearing loss suffered by the Applicant. Counsel for the Respondent directed the Tribunal's attention to the fact that neither Dr Williamsz, Dr Scoppa nor Dr Carroll make a positive diagnosis of work-induced hearing loss; in fact they refuse to do so. Counsel alerted the Tribunal to the fact that Dr Williamsz noted that 22 years of noise exposure was not work-related. It was submitted that the exposure suffered post February 1987 through to November 1989 should not be considered differently.

43. Counsel for the Respondent highlighted that the audiogram produced by Dr Stylis in October 1995 was completely different to the one produced by him in September 1999 and to any other audiograms produced in relation to the Applicant some 15 years ago. It was atypical and flat. It was submitted that Dr Williamsz in 1985 addressed the issue quite clearly. For these reasons it was submitted that the audiogram of 7 October 1995 could not be relied upon by the Tribunal.

44. It was submitted that the Tribunal should not rely upon the assessments made by Dr Williamsz, at least on the issue of how much of the hearing loss is actually attributed to work, since he never indicated any percentages in his report. He stated there was a general hearing loss but never gave any attribution. Counsel directed the Tribunal's attention to the graph of 3 March 1997 and audiogram of 1985 to support its submission that they do not illustrate sufficient evidence to show noise induced hearing loss.

45. It was submitted that there existed no reliable audiogram for the noise induced hearing loss even on a bone conduction study unmasked. Dr Stylis did not appear to know which ear had the noise induced hearing loss. Moreover, the air conduction studies had no correlation with hearing loss caused by work noise. Dr Stylis's configurations could not be accepted as proof of noise induced hearing loss. Counsel for the Respondent conceded, however, that the Applicant's hearing was impaired and that he has had plenty of noise exposure for which he was compensated up to 1987. It was submitted however that the full extent of compensation has already been reached.

46. With respect to the middle ear infection, Counsel noted that Dr Carroll never rated it as a significant cause; he merely listed a number of factors that existed, one of which was a middle ear infection. In June 1999, he made no reference to it, but referred to damage associated with the hair cells in the outer aspect of the cochlea. Counsel emphasised that Dr Carroll indicated this damage occurred early and is not "acquired".

47. It was submitted that Dr Stylis agreed with the proposition that if noise ceased then the related hearing loss also ceased. Counsel submitted that the noise ceased in 1989, and for the previous 33 months the Applicant intermittently used some sound attenuation when he was working with explosives and heavier equipment. Counsel argued the real issue in these proceedings concerned how much noise the Applicant was exposed to during that period. It was submitted that he was not exposed to such noise when he was actually working with the equipment himself since he did have ear protection.

48. Relying on the calculations reached by Dr Scoppa (and the fact that he does not attribute work factors as a cause of the Applicant's hearing loss), it was submitted that without tinnitus, the Applicant does not satisfy the requirements of s24 of the 1988 Act. It was submitted that both Dr Carroll and Dr Stylis ultimately accepted the proposition that on the balance of probabilities, tinnitus was not caused by the Applicant's work. Even without tinnitus, Dr Stylis's assessment in effect was a loss of just under 15%. It was argued that in any case it is not relevant whether tinnitus had a close association with a perforated eardrum or with noise induced hearing loss because the Applicant would not satisfy the necessary statutory evidential test.

49. In response to the Applicant's submission that presbycusis was not a factor that was taken into account in the assessment, Counsel for the Respondent submitted that the tables are about noise induced hearing loss and then deducting a factor for age. They are not about general age related hearing loss.

consideration of evidence and findings of fact

50. It is common ground between the parties that the Applicant was exposed to occupational noise on a regular basis since 1965, and the Tribunal so finds. He was paid compensation in respect of noise-induced hearing loss of 25.4% in July 1987.

51. The Tribunal finds that while the Applicant did not cease his employment with the Respondent until 1991, he had no noise exposure after November 1989. Furthermore, the Applicant wore protective muffs from 1987 onwards for blasting and air compressor activities.

52. In 1994, on Dr Scoppa's assessment, the Applicant's sensorineural hearing loss, corrected for age, had risen to over 40%. By 1997 there had been a further significant increase to over 60%. Dr Carroll's assessment in 1997 was 62%, but only 23.7% was attributable to occupational noise exposure, and Dr Williamsz' assessment was 68%, although the latter may have included a conductive component.

53. The parties agree that the Applicant's current overall hearing impairment is now approximately double what it was in 1987. There is agreement also that he suffers from binaural sensorineural loss with a superimposed conduction defect on the right side.

54. Dr Stylis and Dr Carroll agree that noise induced hearing loss does not become worse after the cessation of exposure to noise. However there is disagreement about the cause of that portion of the Applicant's sensorineural hearing loss that has occurred since the 1987 award of compensation.

55. In deciding this question the Tribunal considered carefully the relevance of the shape of the audiogram, the timing of the deterioration in the Applicant's hearing, and the likelihood of alternative diagnoses. Dr Khan, Dr Williamsz, Dr Stylis and Dr Carroll agree that the relatively even elevation in hearing threshholds across frequencies is not typical of noise-induced hearing loss. They disagree, however, as to the diagnostic implications of this. Dr Carroll does not accept that noise-induced hearing loss can cause a flat audiogram. He considers the finding is strong evidence that the deterioration in the Applicant's condition was caused by something other than industrial noise. Dr Stylis, on the other hand, cited the references in Dr Khan's 1987 report in support of the proposition that so-called flat curves of the frequency distribution of hearing loss do not exclude the diagnosis of noise-induced deafness.

56. The Tribunal is satisfied on the evidence before it that the audiograms are consistently quite atypical of noise-induced hearing loss. While the shape of the audiograms may not exclude all possibility of the diagnosis of noise-induced hearing loss, it makes that diagnosis most unlikely. The Tribunal is satisfied on all of the evidence that at the very least the Applicant's audiograms are sufficiently atypical for that condition to cause one to inquire as to alternative causes of the disability.

57. The Tribunal must now consider whether, on the basis of the finding that the Applicant's noise-induced hearing loss has not become worse after exposure to noise ceased, whether the deterioration post-1987 occurred before 1989 (when there was at least some continuing industrial noise) or later. The expert evidence now before the Tribunal explains the step by step deterioration which occurred from 1987 when he had 25.4% hearing loss, to 1994 when on the assessment of Dr Scoppa he had 41.2% hearing loss, to 1995 when on the assessment of Dr Stylis he had 37.7% hearing loss, and finally in 1997 when on the assessment of Dr Carroll and Dr Williamsz he had 60% hearing loss. On the basis of these figures the Applicant had a very significant hearing loss in the period 1994 to 1997.

58. Dr Stylis opined that the very significant increase in hearing impairment after 1987, in effect, a doubling of the loss, can be ascribed solely to occupational noise exposure in the period 1987 to 1989. The Tribunal finds this to be unlikely. It would mean discarding both the 1993 and the 1995 audiograms of two reputable ENT surgeons (Dr Scoppa and Dr Stylis) which suggest a stepwise deterioration in hearing after 1994. Alternatively it would require the Tribunal to accept that noise-induced hearing loss can continue after cessation of exposure, which is against the weight of the expert evidence.

59. The Tribunal notes that Dr Stylis considers that the figures produced in his 1995 audiogram were not correct because of technical difficulties in conducting the test. However, if in fact the Applicant's hearing deteriorated steadily from 1987 through to the present, Dr Stylis's 1995 results are quite consistent not only with the 1987 audiograms and the 1997 results, but also with Dr Scoppa's findings. Even if Dr Stylis's 1995 results are wrong, Dr Scoppa's audiogram from 1993 has not been called into question. If Dr Scoppa's figures are correct, then on all of the expert evidence there must at the very least have been some other factor operating to cause continued sensorineural hearing loss after the cessation of the work-related noise exposure, if in fact the hearing loss deterioration at that stage was noise induced.

60. If the Tribunal was to accept that the entirety of the Applicant's age-corrected sensorineural loss was caused by occupational noise exposure, then approximately half of it must have occurred in the 2½ year period during 1987-1989 before the Applicant ceased working in a noisy environment. This proposition is difficult to accept unless -

(1) during that 2½ year period the Applicant's level of exposure to industrial noise was much greater than previously; or

(2) he had become more sensitive to the effects of a similar or lesser level of noise; or

(3) there was some other cause for the deafness.

61. In respect of the first proposition, the Tribunal has no evidence that the level of the Applicant's exposure to noise was any greater after 1987 than it had been previously. In all likelihood, given the Applicant's use of protective earmuffs when exposed to explosives, jackhammering and air compressors from 1987 onwards, it was a good deal less. Unprotected noise exposure was attributed to aircraft coming in to land at the airport at Mascot when he was working for three months at Tempe, and to the noise of semi-trailers on the Princes Highway at times when his work was located there from time to time during the 2½ period between 1987-89. The Tribunal is not satisfied that the Applicant's exposure to noise was any greater after 1987 than it had been previously.

62. In respect of the second proposition, there was a divergence of opinion between Dr Carroll and Dr Stylis. In Dr Stylis's view the Applicant was more vulnerable to the effects of noise because his health had deteriorated. Dr Carroll does not accept that individual vulnerability varies over time. He did not consider there is any scientific evidence in support of the proposition that the Applicant's history of stroke, heart attack and ear infection may have increased his sensitivity to the effects of noise.

63. In respect of the third proposition, Dr Carroll said that apart from old age the most common cause of bilateral nerve deafness, accounting for about 60% of all cases, is idiopathic sensorineural deafness, a diagnosis which is open in this case. In his oral evidence Dr Stylis did not refer to this alternative diagnosis. However, in the context of the very unusual audiogram, the Tribunal considers it is an important consideration.

64. The Tribunal finds that the evidence strongly favours the opinion that there is some factor other than occupational noise as the cause of the Applicant's continuing sensorineural hearing loss after 1987. Accordingly, the Tribunal finds the increase in the Applicant's sensorineural loss between 1987 and 1997 was not caused by occupational noise in the period 1987-1989, but rather by an unrelated condition, probably idiopathic sensorineural deafness.

65. Where Dr Stylis and Dr Carroll disagree the Tribunal preferred the evidence of Dr Carroll. The Tribunal found Dr Stylis's evidence confused and inconsistent, especially on the issue of interpretation of the audiograms. Dr Carroll on the other hand was clear, consistent and concise in his evidence.

66. The Applicant suffers from bilateral sensorineural deafness with a superimposed conductive deafness on the right. Dr Stylis and Dr Carroll agree that noise induced hearing loss occurs during exposure but that hearing does not continue to deteriorate after cessation of noise exposure. The Tribunal finds accordingly.

67. The Tribunal finds that while the Applicant may have been exposed to a degree of continuing industrial noise in the period 1987 to 1989, it was to a much lesser degree than prior to 1987. The Tribunal also finds that the deterioration in the Applicant's hearing after 1987 is too great to have been caused by the limited occupational noise exposure he experienced after that date. The sensorineural hearing loss continued to progress long after the Applicant's exposure to industrial noise had ceased.

68. The parties agree that the Applicant suffers from tinnitus. There are two issues for the Tribunal to decide;

(1) When did the condition commence?

(2) Is it a disease or injury caused, accelerated, aggravated or materially contributed to by his employment?

69. Dr Stylis opined that the Applicant might have had tinnitus for many years without feeling any need to comment on it. While this is possible, the Tribunal finds it surprising that no mention of such a significant and basic symptom of hearing pathology is made in any of the specialist reports prior to 1997. The Tribunal would expect specific questions to have been asked about it during examinations by the ENT surgeons, and responses recorded. The 20 year history of tinnitus recorded by Dr Williamsz was later corrected by him.

70. Dr Stylis maintained that the Applicant might well have suffered from tinnitus without being aware of it. From June 1997 the Applicant has maintained resolutely that his tinnitus did not begin until 1990 or 1991, some two years after cessation of occupational noise exposure. Dr Williamsz accepted this history in his second report, as has Dr Carroll. The opinion of Dr Stylis does not sit comfortably with the weight of the evidence before the Tribunal in respect of the Applicant's tinnitus.

71. The Tribunal finds that the Applicant first experienced tinnitus about 1990 or 1991. If it was associated with his occupational exposure to noise either before or after 1987 it would have occurred at the time and not after any work-related noise exposure had ceased. The Tribunal is not reasonably satisfied that there is a causal link between the Applicant's tinnitus and his prior occupational noise exposure.

72. For these reasons the Tribunal will affirm the decision under review.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr J R Vallentine, Member.

Signed: .....................................................................................

Associate

Date/s of Hearing 15 June 1999,14 October 1999

Date of Decision 8 May 2000

Counsel for the Applicant Mr T. D. Hughes

Solicitor for the Applicant Nicholas Karefylakis

Counsel for the Respondent Mr J. Wallace

Solicitor for the Respondent Sparke Helmore