Martin and Military Rehabilitation and Compensation Commission [2010] AATA 629 (23 August 2010)

Last Updated: 24 August 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3256

VETERANS' APPEALS DIVISION		)
	Re		PETER MARTIN

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Miss E A Shanahan, Member

Date 23 August 2010

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) E A Shanahan
Member

COMPENSATION – permanent impairment – sensori-neural deafness – exposure to noise as an Army Reservist – audiometry pattern not that of noise induced hearing loss – decision affirmed

Commonwealth Employees’ Compensation Act 1930 (Cth)

Compensation (Commonwealth Government Employees) Act 1971

Military Rehabilitation and Compensation Act 1994 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16
Veterans’ Entitlements Act 1986

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Re Chard and Telstra Corporation Limited [2008] AATA 899
Re Surtees and Military Rehabilitation and Compensation Commission [2007] AATA 25

REASONS FOR DECISION

23 August 2010

Miss E A Shanahan, Member

1. Mr Martin has moderately severe sensori-neural hearing loss that he attributes predominantly to excessive noise exposure during his 18 years service in the Army Reserve. Mr Martin lodged a claim for compensation on 26 July 2006. A claim had been considered under the Veterans’ Entitlements Act 1986 (the VE Act), Mr Martin's hearing loss being accepted as defence service related and between 28 February 2006 and late October 2006 he received a disability pension at 60% of the General Rate. This pension was cancelled in December 2006. The current claim is assessed in accordance with the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act/the 1988 Act). On 30 January 2007 a delegate of the Military Rehabilitation and Compensation Commission (MRCC) disallowed the claim denying liability for Mr Martin's hearing loss. This determination was varied on 26 June 2008 when the Respondent accepted liability for a 1.5% noise induced hearing loss (NIHL) with the date of injury being 10 October 1989. Mr Martin sought review of this decision by the Administrative Appeals Tribunal (the Tribunal) on 17 July 2008. Mr Martin was self represented but assisted by Mr John Lock. Ms A McMahon of Counsel appeared for the MRCC.
2. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents, R1). The parties tendered the following documents:

For the Applicant
Mr Martin's documentation of exposure to noise and data from the US Army Centre for Health Promotion and Preventative Medicine regarding noise levels of common army equipment	Exhibit A1
Report of Mr Newlyn dated 13 February 2009	Exhibit A2
For the Respondent
Extracts from earlier audiology examinations regarding Mr Martin	Exhibit R2
Audiology report dated 17 January 2007	Exhibit R3
Report from written by Eugene Mougerman – of Australian Hearing dated 17 June 2009	Exhibit R4
Report of Mr Don McMahon dated 23 June 2010	Exhibit R5
Referral letter from Dr Mackay to Dr Marty dated 14 May 2007	Exhibit R6
Letter from Dr Marty in response to Dr Mackay dated 9 July 2007	Exhibit R7

3. Mr Martin and Mr McMahon gave evidence before the Tribunal and Mr Newlyn's evidence was given by telephone.
4. In his evidence Mr Martin told the Tribunal he had served as a Reservist between 27 July 1966 and 31 January 1968 and again from 12 November 1975 to 5 July 1991. He was discharged from the Army Reserve in 1994 but was not actively involved between 1991 and 1994. In 1976 he first noted tinnitus which fluctuated daily but was less severe when not exposed to noise. He spent 100 days per year serving as a Reservist with a maximum stretch of 16 days. During these periods he first trained and then instructed in the use of artillery and the driving of heavy vehicles. The ear protection provided was described as small yellow earplugs.
5. Mr Martin agreed with Ms McMahon that he underwent regular hearing testing throughout his service and that in 1989 his hearing loss was to the order of 5%. He had not noted any difficulty hearing until his deafness was brought to his attention by his wife who insisted he obtain medical attention in 2002. His wife was tired of the TV volume being on high.
6. Mr Martin denied any exposure to loud noise in his civilian life. He had worked for the Postmaster-General’s Department and then Telecom in Yallourn, initially performing switchboard work then outside maintenance followed by installation. He transferred to Melbourne in 1975 and for the two years prior to his retirement on 1 March 1993 he worked in an office.
7. Mr Martin was aware that his hearing loss was now of the order of 60% but he was unaware that his hearing loss had gone from approximately 45 to 60% between February 2006 and January 2007.
8. Mr Martin had not suffered earache, ear infections or dizziness. To his knowledge there was no family history of hearing loss. His mother has suffered from Meniere's Disease (vertigo) since the age of 80.
9. Mr Martin described his consultation with Mr McMahon as being of approximately 20 minutes duration during which he was asked a few questions and was not examined.
10. Exhibit A1 provided by Mr Martin contained a US Army Centre for Health Promotion and Preventative Medicine detailing army equipment noise levels. M113 armoured personnel carriers generated a steady noise to a maximum of 118 decibels (dB) and a 0.50 calibre machine gun, an impulse noise, generated 153dB. Mr Martin also provided a chronology of his reserve activities and the types of equipment used on a regular basis. These most closely equated to the M113 carrier and the 0.50 machine gun but also included pistols, rifles and M26 grenades.
11. Mr Newlyn is Mr Martin's audiometrist and has worked in the hearing loss field for 30 years. In his report of 13 February 2009 (Ex A2) he attributed most of Mr Martin's current hearing loss to noise exposure. He contrasted the Department of Veterans' Affairs (DVA) approach to the subject with that of the MRCC under the SRC Act. He criticised the 1989 audiogram in that not all frequencies were tested and stressed that Mr Martin's increased hearing loss in the right ear was consistent with him being a left handed shooter.
12. In his evidence Mr Newlyn expressed the opinion that the M113 carrier noise level and the 0.50 machine gun noise would impact on Mr Martin's hearing immediately. He said the higher the decibel level the shorter the period wherein damage can be avoided.
13. Ms McMahon queried Mr Newlyn's expertise on the basis that he was an audiometrist whose training was in house with a hearing aid company as opposed to a university training and degree. His records were also questioned as there was no record of the date of the onset of hearing loss and Mr Martin's history, as recorded, was brief.
14. Mr Newlyn estimated that the difference between Mr Martin's right and left ear hearing in 1989 was 1 - 2% and pointed out that not all frequencies had been tested in 1989. He opined that hearing loss due to noise exposure continued after the exposure ceased. He was unable to nominate any scientific papers to support his opinion and relied on his own practical experience. Mr Newlyn believed that some inner ear hair cells were partially damaged when the individual was exposed to noise and these cells continued to degenerate after noise exposure ceased. He referred to the different patterns of hearing loss and different types of exposure such as those experienced by saw millers. He agreed with Ms McMahon that Mr Martin's hearing loss was not the classical V shaped pattern of noise exposure and that his testing had shown most loss at levels greater than 70dB and that most of Mr Martin's hearing loss occurred between 2006 and 2007 based on his testing of February 2006 and January 2007.
15. Mr McMahon is an ear, nose and throat (ENT) Surgeon who has recently retired after 36 years working for Australian Hearing Services. Prior to this he worked with Professor Clark on the bionic ear. He had provided three reports dated 13 December 2006 (T10), 5 June 2008 (T17) and 23 June 2010 (Ex R5). In the 2008 report Mr McMahon attributed 1.5% of Mr Martin's hearing loss to noise based on his interpretation of the audiogram performed on 10 October 1989. At that time the total percentage loss of hearing was 5.7% of which it was estimated 1.5% was attributable to army service based on the 3000 - 4000Hz range loss. This audiogram had shown the presence of other pathology affecting the lower and middle frequencies, that is those below 3000Hz, as the maximum loss in both ears was at the 2000Hz level rather than the 3000 - 4000Hz level seen as a result of noise exposure.
16. In his report of 23 June 2010 (Ex R5), Mr McMahon pointed out that the vast majority of Mr Martin's hearing loss had occurred since he had left the Army and was no longer exposed to noise. He stressed that it had been completely established that after the cessation of a noise there is no further hearing loss as a result of that noise. In addition the pattern of hearing loss at Mr Martin's audiometry did not show the characteristics of noise damage. He explained the difference in loss between the two ears as being due to head shadowing, that is, the obstruction of noise waves by the head which normally occurred in high frequency noise. Mr Martin did not show this effect. Mr McMahon also provided the guidelines for the assessment of noise induced hearing loss (NIHL) authored by the Australian Society of Otolaryngology (Victorian Division) which states that noise induced hearing loss is caused by prolonged exposure to loud noise and produces a characteristic bilateral sensori-neural loss pattern on pure tone audiometry. It is slowly progressive and ceases when noise exposure stops. Therefore the typical case would have a bilateral reasonably symmetrical V or U shaped hearing loss at 3 - 6kHz and not exceeding 70dB.
17. In his evidence Mr McMahon said he had seen and investigated somewhere in the vicinity of 50,000 cases of NIHL. In army personnel overall the hearing loss was of the order of 5 - 10% and occurred in the higher frequency range. He said there was medical consensus, supported by the medical literature that once the noise exposure ceased, damage to the hair cells of the inner ear and the consequent hearing loss ceased. He disagreed with Mr Newlyn's opinion that partially damaged hair cells resulted in continuing deterioration in hearing there being no such supporting evidence in the scientific literature. Mr Martin's audiograms, which Mr Mahon had reviewed, were not typical of noise damage and most of the hearing loss had occurred from 2006, some 15 years after his exposure to noise ceased. The noise levels considered dangerous were 85dB of continuous noise and 145dB of single episode impulse noise.
18. Mr McMahon explained that he did not perform physical examinations on patients since he was sued by a patient for allegedly damaging their ear during an examination. Instead he relied on the audiograms and in Mr Martin's case was aware of earlier investigations performed to exclude retrocochlear pathology such as an acoustic neuroma.
19. Mr Martin had obtained the opinions of Mr Marty and Mr Smith both of whom are ENT surgeons. Mr Smith considered that 17 years in the armoured part of the army had led to some noise related damage to the inner ear. Mr Marty was of the opinion that Mr Martin's hearing loss was partly due to an underlying delayed congenital nerve deafness and partly attributable to noise exposure during his army reservist service although the audiograms performed in 2006 were not typical of damage due to noise exposure as most of the loss attributable to noise was in the higher frequencies. Neither consultant was able, or prepared to, quantify the amount of NIHL.
20. On enlistment at the age of 19 Mr Martin's hearing was considered normal. An entry medical examination conducted on 10 October 1989 included an audiogram which revealed what has now been estimated as a 5.7% hearing loss of which 1.5% was attributed to noise exposure. Unfortunately not all subsequent audiograms have been interpreted in terms of hearing loss as a percentage and the Tribunal Member does not feel it appropriate for her to attempt to convert the figures to percentages.
21. On 13 February 2006 Mr Newlyn estimated a 42.2% hearing loss and on 13 December 2006 Australian Hearing Services recorded a 41.8% hearing loss. DVA in February 2006 estimated the hearing loss at 57.9% and on 17 January 2007 Mr Newlyn had recorded a hearing loss of 60%. Certainly if one compares the actual graphs there is a marked recent deterioration. Based on the figures that have been provided to the Tribunal there has been at least a 40% deterioration between February 2006 and January 2007. While Mr Martin has benefited markedly from provision of hearing aids, it is obvious that his hearing continues to deteriorate at quite a rapid rate.

RELEVANT LEGISLATION

22. Mr Martin's claim for compensation has been lodged under the SRC Act, application having been made on 26 July 2006 under s 14 and s 16. The Respondent has accepted liability to pay compensation under s 14 of the SRC Act for a 1.5% hearing loss attributed to noise exposure whilst an army reservist. Mr Martin's army career dates from 1966 to 1968 and again from 1975 to 1991. Theoretically his period of service attracts the Compensation (Commonwealth Government Employees) Act 1971 and also the 1930 Act provisions. Transitional arrangements were incorporated in the 1988 Act.

LEGISLATION

23. Section 5A of the SRC Act defines injury as meaning:

(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

24. Section 5B considers the definition of disease as meaning:

(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

25. Section 5B(3) states in the SRC Act significant degree means a degree that is substantially more than material.
26. Section 16 of the SRC Act is concerned with compensation in respect of medical expenses and s 24 provides for compensation for injuries resulting in permanent impairment. Section 24 (7A)(b) of the SRC Act states that if Comcare determines that the binaural hearing loss suffered by the employee is less than 5%, an amount of compensation is not payable to the employee under this section.
27. Section 124(8) of the SRC Act’s Transitional Division is attracted by Mr Martin's period of service in the Army Reserves in relation to liability for the payments under subsections 16(1) and 16(6).

SUBMISSIONS

28. Mr Lock, on behalf of Mr Martin, submitted that too much weight had been put on the 1989 audiogram findings particularly as Mr Martin's service had continued until 1991. He pointed out the difference in approach under the VE Act and the difference of opinion between Mr Marty and Mr McMahon. Mr McMahon had diagnosed a progressive deterioration in Mr Martin's hearing unrelated to his noise exposure but did not explain the cause of this deterioration. Mr Lock contended that all Mr Martin's hearing loss was attributable to his army reservist activities.
29. Ms McMahon identified the only issue before the Tribunal as being the percentage loss of Mr Martin's hearing attributable to his noise exposure in the reserves. Mr McMahon had been the only otolaryngologist who had accessed the 1989 audiogram. This had formed the basis for his calculation that as of 10 October 1989 Mr Martin had a 5.7% hearing loss of which 1.5% was due to noise exposure. In Mr McMahon's opinion the hearing loss due to noise exposure would have ceased in 1991 and all further deterioration was now unrelated to service. Ms McMahon argued there was consensus in the otolaryngology specialist community that hearing loss ceased once the individual was removed from the source of noise.
30. In light of Mr Martin's period of service in the Army Reserve commencing in 1965 and finishing in 1991, Ms McMahon had estimated, in accordance with s 124(8) of the SRC Act, the various percentage losses throughout that period. Based on the total 5.7% hearing loss in October 1989, this equated to a .38% loss per annum and thus Mr Martin's hearing loss under the 1930 Act was .57%; 4.94% under the 1971 Act and .19% under the 1988 Act. As the SRC Act requires a 5% or more binaural hearing loss to be suffered by the employee to attract compensation for permanent impairment, Mr Martin did not satisfy the requirements of the 1988 Act.

TRIBUNAL'S DELIBERATIONS

31. It is accepted by all, including the three otolaryngologists, that Mr Martin's hearing loss has been contributed to by noise exposure during his service in the Army Reserve.
32. Mr Marty and Mr McMahon both described Mr Martin's audiogram curves as atypical of those in NIHL. The latter classically show loss at 3000 - 6000Hz producing a U or V shaped audiogram. Mr Martin's hearing loss extends across all frequencies from 500 - 8000Hz. Mr Marty was of the opinion that Mr Martin had an underlying delayed congenital nerve deafness as well as NIHL but could not apportion the loss to each cause. Mr McMahon did not postulate a cause for Mr Martin's continuing hearing loss after the cessation of noise exposure as the severity of loss precluded a definite diagnosis with respect to the underlying disease.
33. The issue to be determined is Mr Martin's percentage loss of hearing attributable to his employment.
34. The Tribunal accepts the authority of the Australian Society of Otolaryngology Head and Neck Surgery, Victorian Section Guidelines that NIHL ceases when noise exposure stops. Mr Martin did not appreciate his deafness until his wife complained and encouraged him to seek medical attention in 2002. In 2006 Mr Martin's hearing loss was in the order of 42%. In contrast his hearing loss in October 1989 was 5.7% after 16.5 years as a reservist, which on Ms McMahon's calculations amounted to a .38% loss per annum.
35. Mr McMahon had agreed with, and adopted, Mr Eugene Mougerman's calculations that of the 5.7% hearing loss measured in 1989 only 1.5% was NIHL. If these figures are accurate, and the Tribunal has no reason to doubt them, the last two years of Mr Martin's service could have contributed a further 0.18% to his NIHL with further damage ceasing on his discharge from the Army Reserve on 5 July 1991. This is not a significant contribution to Mr Martin's overall hearing loss, calculated to be 60% by Mr Newlyn in January 2007.
36. The classification of Mr Martin's hearing loss as either an injury or a disease is problematic given the acknowledged dual contributing conditions. This dilemma was referred to by the Tribunal in the decisions Re Chard and Telstra Corporation Limited [2008] AATA 899 and Re Surtees and Military Rehabilitation and Compensation Commission [2007] AATA 25. The exposure to noise could be considered an injury and certainly produces physiological change albeit not sudden or dramatic as delineated by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. Such noise exposure also produces pathological change in the form of irreversible damage and death of the inner ear hair cells. The other pathology contributing to Mr Martin's deafness and termed delayed congenital nerve deafness by Mr Marty would be classified as a disease. It would be open to the Tribunal to determine that this disease has been aggravated by Mr Martin's noise exposure with the requirement that his employment contributed to his deafness to a significant degree.
37. The Respondent has accepted liability under s 14 of the SRC Act to pay compensation for an injury based on Mr McMahon's opinion that there has been a 1.5% contribution by noise damage to Mr Martin's now 60% or thereabouts hearing loss.
38. Based on the evidence, any noise exposure contributing to Mr Martin's deafness was of the order of 1.5 - 1.7% and ceased in July 1991 and thus does not meet the s 24(7A) requirement of a binaural hearing loss of 5% or more, in order to attract compensation for injuries resulting in permanent impairment. Mr Martin's hearing loss has progressed significantly since the audiogram of 1989 due to, what has been termed, natural and unrelated deterioration.
39. The Tribunal affirms the decision under review.
    

I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E A Shanahan, Member

(sgd): Leah Berardi

Clerk

Dates of Hearing 2 July 2010

Date of Decision 23 August 2010

Advocate for the Applicant Mr J Lock

Counsel for the Respondent Ms A McMahon

Solicitor for the Respondent Australian Government Solicitor