CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Dixon v J M Hargreaves (NSW) Pty Ltd (Deregistered) & Ors [2024] NSWPIC 231	
		
APPLICANT:	Donald Dixon	
		
FIRST RESPONDENT:	J M Hargreaves (NSW) Pty Ltd (de-registered)	
		
second RESPONDENT:	The Trustee for LO RE Family Trust trading as Capital Hydraulic and Drains Pty Ltd	
		
third RESPONDENT:	Workers Compensation Nominal Insurer (icare)	
		
Member:	John Isaksen	
		
DATE OF DECISION:	3 May 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment for binaural hearing loss and for the cost of supply and fitting of binaural hearing aids; determination of the last noisy employer of the worker; whether the last employer where the worker was exposed to excessive noise was connected to the State of New South Wales; reference to Tamboritha Consultants P/L v Knight, Martin v RJ Hibbens P/L and Workers Compensation Nominal Insurer v O’Donohue on the application of section 9AA; whether a previous employer in NSW was the last noisy employer of the worker; reference to Callaby v State Transit Authority in determination of the last employer where the tendency, incidents or characteristics of employment gave rise to a real risk of industrial deafness; Held – the last employer where the worker was exposed to excessive noise was not connected to the State of New South Wales; the first respondent identified as the last noisy employer of the worker in NSW; referral to a Medical Assessor for assessment of whole person impairment for binaural hearing loss; order for the payment of the cost of supply and fitting of bilateral hearing aids by the first respondent. 
 	
determinations made:	The Commission determines:
1.	Pursuant to s 9AA (3)(a) of the Workers Compensation Act 1987, the applicant did not usually work in the state of New South Wales in his employment with the second respondent.
2.	Pursuant to s 9AA (3)(b) of the Workers Compensation Act 1987, the applicant was not usually based in the state of New South Wales in his employment with the second respondent.
3.	Pursuant to s 9AA (3)(c) of the Workers Compensation Act 1987, the second respondent’s principal place of business in Australia was located in the Australian Capital Territory when the applicant was employed by the second respondent.
4.	The applicant’s employment with the second respondent is not connected with the state of New South Wales, and accordingly compensation is not payable to the applicant by the second respondent or third respondent.
5.	The first respondent is the applicant’s last noisy employer in the state of New South Wales in the application of s 17 of the Workers Compensation Act 1987.
6.	The deemed date of injury is 28 February 2005, being the last day the applicant was employed in an employment to the nature of which his injury was due before he gave notice of injury, as prescribed by s 17(1)(a)(ii) of the Workers Compensation Act 1987. 
7.	The supply and fitting of bilateral hearing aids is reasonably necessary as a result of the injury of boilermakers deafness suffered by the applicant while employed by the first respondent.
The Commission orders:
8.	Award for the second respondent.
9.	Award for the third respondent.
10.	The first respondent is to pay for the fitting and supply of bilateral hearings aids pursuant to 
s 60 (5) of the Workers Compensation Act 1987 and in accordance with the Hearing Aid Fess and Practice Requirements issued by SIRA effective as of 1 February 2024.
11.	This matter is remitted to the President for referral to a Medical Assessor as follows:
Date of injury:			28 February 2005
Body Part:			Hearing loss
Method of Assessment:		Whole person impairment
12.	The following documents are to be forwarded to the Medical Assessor:
(a)	Application to Resolve a Dispute and attached documents;
(b)	Reply and attached documents filed by the first respondent, and
(c)	a copy of this decision.	

STATEMENT OF REASONS
BACKGROUND
1.	Donald Dixon, the applicant in these proceedings, makes a claim for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 23% whole person impairment for boilermakers deafness and also seeks an order pursuant to s 60 (5) of the 1987 Act for the payment of the fitting and supply of binaural hearing aids as a result of that deafness.
2.	The claim is brought against The Trustee for LO RE Family Trust trading as Capital Hydraulic and Drains Pty Ltd (‘Capital Hydraulic’) on the basis that this employer was the last noisy employer whom Mr Dixon was employed with. Mr Dixon claims that he was employed as a drainage labourer for Capital Hydraulic between 7 July 2008 and 19 February 2010.
3.	No insurance has been identified for Capital Hydraulic. Workers Compensation Nominal Insurer (icare) has been joined to the proceedings as provided for by s 140 of the 1987 Act. Icare disputes that Mr Dixon’s injury is connected to New South Wales (NSW) as required by s 9AA of the 1987 Act.
4.	J M Hargreaves (NSW) Pty Ltd (de-registered) (‘Hargreaves’) has been joined to the proceedings as being the last noisy employer of Mr Dixon in NSW if it is found that 
Mr Dixon’s employment with Capital Hydraulic was not connected to NSW. Mr Dixon claims that he was employed as a drainer with Hargreaves for two weeks in February 2005.  Hargreaves disputes that Mr Dixon sustained injury in the course of his employment with them. Hargreaves contends that it was not Mr Dixon’s last noisy employer.
ISSUES FOR DETERMINATION
5.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant’s employment with Capital Hydraulic was connected to the state of NSW (s 9AA of the 1987 Act), and
(b)	if applicant’s employment with Capital Hydraulic was not connected to the state of NSW, whether Hargreaves was the last noisy employer of the applicant and is liable to pay the compensation sought by the applicant (s 17 of the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION 
6.	The parties attended a conference and hearing on 24 April 2024. 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.
7.	Mr Stanton appeared for Mr Dixon, instructed by Ms Faura. Ms Balendra appeared for icare, instructed by Mr Mickleburgh. Ms Goodman appeared for Hargreaves, instructed by 
Mr Twemlow. 
8.	There was not appearance by Capital Hydraulic, but I am satisfied that Capital Hydraulic was properly served with the Application to Resolve a Dispute (ARD) from the Certificate of Service filed by Mr Dixon.
9.	The hearing was conducted by video link and was recorded.
EVIDENCE
Documentary evidence
10.	The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination: 
(a)	ARD and attached documents; 
(b)	Reply and attached documents filed by Hargreaves, and
(c)	Reply and attached documents filed by Workers Compensation Nominal Insurer. 
Oral evidence 
11.	There was no application to adduce oral evidence or cross-examine the applicant.
The applicant’s evidence 
12.	Mr Dixon has provided statements dated 22 July 2023 and 14 November 2023. He has set out an occupational history which has not been contested by any of the respondents. 
13.	Mr Dixon states that he was employed with Hargreaves as a drainer for about one to two weeks in February 2005. He states that he spent a lot of the time operating a jackhammer in trench work in order to access a pipe system for the Commonwealth Bank in Goulburn. He states that he was exposed to noise for six to seven hours per day in an eight hour shift. 
Mr Dixon states that the noise at work caused him to raise his voice to communicate with a co-worker standing about 1m away from him. He states: “I was not provided with hearing protection which I wore when safe to do so.”
14.	Mr Dixon states that he was self-employed as a plumber between about 1994 and about 2007. He states that there were days when he was exposed to noise from power tools, heavy machinery, grinders, compressors and jackhammering, although there were other days when he was not exposed to much noise.
15.	Mr Dixon states that he was then employed to work in water installation with One Water Naturally Pty Ltd from 18 January 2007 to 28 April 2007. He states that he was not exposed to any excessive loud noise. He states that there was the occasional noise from power tools but it was only for a few minutes at a time.
16.	Mr Dixon states that he was then employed with Capital Hydraulic as a drainage labourer from 7 July 2008 to 19 February 2010. He states that the head office of Capital Hydraulic was located in Mitchell in the Australian Capital Territory (ACT). He states that he cannot recall signing a contract of employment with Capital Hydraulic.
17.	Mr Dixon states that he was exposed to noise from jackhammers, grinders, excavators, and general work site noise for six to seven hours per day during an eight hour shift while working for Capital Hydraulic. He states that the noise at work caused him to raise his voice to communicate with a co-worker standing about 1m away from him.
18.	Mr Dixon states that he worked in both the ACT and NSW during his employment with Capital Hydraulic. He states that he went to whatever job his employer sent him to and he regularly crossed the NSW/ACT border to attend to the jobs he was directed to do. He recalls fixing septic tanks in Bungendore in NSW for four days, installing manholes in Queanbeyan in NSW for two to three days, and working at the Masters building in Queanbeyan for about a week. 
19.	Mr Dixon states in his second statement that he worked about 20% of the time for Capital Hydraulic in NSW and 80% of the time in the ACT. He states that he was sent to work in NSW when required because he was the only drainer who held a NSW drainers licence. He states that he resided in Goulburn during his period of employment with Capital Hydraulic. 
20.	Mr Dixon states that he has suffered with hearing problems for over 10 years and his hearing has slowly become worse over the years.  
The medical evidence 
21.	Dr Fagan, ear nose and throat specialist, has provided a report at the request of Mr Dixon’s lawyers dated 20 January 2020. 
22.	Dr Fagan records details of an occupational history which is consistent with the evidence provided by Mr Dixon in this dispute.
23.	Dr Fagan records that Mr Dixon was exposed to noise from jackhammers, backhoes, drills, excavators, diesel trucks and cement mixers while employed with Hargreaves, and that this noise was constant and continuous up to six to seven hours during an eight hour shift. He records that no hearing protection was provided to Mr Dixon. He records that Mr Dixon had to generally raise his voice in order to communicate at a distance of 1m, which is indicative of ambient noise levels in excess of 90dB. Dr Fagan opines that more than two hours of such exposure to noise would be hazardous to a person’s hearing.
24.	Dr Fagan records that Mr Dixon was exposed to noise from jackhammers, grinders, excavators and machinery while employed with Capital Hydraulic, and that this noise was constant and continuous for up to six to seven hours during an eight hour shift. He records that ear muffs were provided to Mr Dixon. He records that Mr Dixon had to generally raise his voice in order to communicate at a distance of 1m, which is indicative of ambient noise levels in excess of 90dB. Dr Fagan opines that more than two hours of such exposure to noise would be hazardous to a person’s hearing.
25.	Dr Fagan concludes that Mr Dixon’s last employer with the tendencies, incidents and characteristics to cause occupational noise induced hearing loss is Capital Hydraulic. He assesses Mr Dixon as having 23% whole person impairment due to industrial deafness, which includes 3% binaural hearing loss for severe tinnitus. 
26.	Dr Fagan also considers that hearing aids are reasonably necessary due to the nature and severity of the hearing loss and tinnitus sustained by Mr Dixon. 
27.	Dr Johnston, ear nose and throat specialist, has provided a report at the request of icare dated 30 November 2021.
28.	 Dr Johnston records details of an occupational history which is consistent with the evidence provided by Mr Dixon in this dispute.
29.	Dr Johnston records that Mr Dixon had significant exposure to jackhammers, saws, building sites and general construction noise while employed for two weeks with Hargreaves in February 2005.
30.	Dr Johnston records that Mr Dixon had significant exposure to noise from excavators, jackhammers, grinders and cement saws while working on a full-time basis and with some overtime with Capital Hydraulic between 2008 and 2010. He records that Mr Dixon wore ear protection.  
31.	Dr Johnston includes that a significant part of Mr Dixon’s hearing loss is due to past noise exposure. Dr Johnston opines that Mr Dixon’s employment with Capital Hydraulic was of such a nature that the tendencies, incidents and characteristics of that employment would give rise to a material risk of industrial deafness. 
32.	Dr Johnston writes:
“I believe that his last noisy employer is Capital Hydraulic and Drains Pty Ltd but there is some uncertainty as to whether this company is in the ACT and may not be covered for compensation through the NSW scheme. I have not deducted a percentage for his work in the ACT as it was very uncertain how much work he actually did as most of the time he was crossing the border NSW for daily work.”
33.	Dr Johnston assesses Mr Dixon as having 13% whole person impairment due to industrial deafness, which includes 2% binaural hearing loss for tinnitus. 
34.	Dr Johnston considers that Mr Dixon would be well treated with the provision of high quality bilateral digital hearing aids due to the significant contribution from noise induced hearing loss.  
Determination
Whether the applicant’s employment with LO RE Family Trust trading as Capital Hydraulic and Drains Pty Ltd was connected with New South Wales
35.	Section 9AA of the 1987 Act relevantly provides:
“(1) 	Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) 	The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3) 	A worker's employment is connected with:
(a) 	the State in which the worker usually works in that employment, or
(b) 	if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c) 	if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.
(4) 	… 
(5) 	…
(6) 	In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(7)	…

(8)	…
	State includes Territory and, in a geographical sense, a State’s or Territory’s relevant adjacent area as described in Schedule 1.”
36.	Deputy President Roche in Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 (Martin) provided an overview of the application of s 9AA at [60] as follows:
“The following principles can be extracted from the above authorities and are applicable in the determination of cases under section 9AA of the 1987 Act:
•	(a) regard should always be had to the terms of the contract of employment;
•	(b) ‘usually works’ means the place where the worker habitually or customarily works, or where he or she works in a regular manner (Hanns at [26]). It does not mean the place where the worker works for the majority of time (Knight at [76]) and is not simply a mathematical exercise (Falls at [43]), though the time worked in a particular location will naturally be relevant. It will also be relevant to look at where the worker is contracted to work (Falls). Regard must be had to the worker’s work history with the employer and the parties’ intentions, but “temporary arrangements” for not longer than six months within a longer or indefinite period of employment are to be ignored. Whether an arrangement is a “temporary arrangement” will depend on the parties’ intentions, which will be ascertained by looking at the worker’s work history and the terms of the contract. A short-term contract of less than six months that is not part of a longer or indefinite period of employment will not usually be a “temporary arrangement” (Knight);
•	(c) ‘usually based’ can include a camp site or accommodation provided by an employer (Knight at [83]). Where a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so. In considering where a worker is “usually based”, regard may be had to the following factors, though no one factor will be decisive: the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, the location from where the worker’s wages are paid, and
•	(d) an employer’s ‘principal place of business’ is the most important or main place where it conducts the main part or majority of its business (Knight at [66]). It will not necessarily be the same as its principal place of business registered with ASIC.” 
37.	Deputy President Roche in Workers Compensation Nominal Insurer v O’Donohue [2014] NSWCCPD 1 (O’Donohue) said at [48]:
 “To determine whether the employment is connected with New South Wales, sub-s (3) of s 9AA provides a series of cascading tests. First, a worker’s employment is connected with the State ‘in which the worker usually works in that employment’ (s 9AA (3)(a))(the ‘usually works’ test). If that test provides an answer to the question, there is no need to proceed further.”
38.	There is little evidence from Mr Dixon and no evidence from Capital Hydraulic of what Higgins CJ in Avon Products Pty Ltd v Falls [2009] ACTSC 141 (Falls) referred to at [50] for the ‘usually works’ test of “that place or those places at which the worker was expressly or by necessary implication contracted to work.” Mr Dixon merely states that he worked 20% of the time for Capital Hydraulic in NSW and 80% of the time in the ACT. 
39.	I appreciate that Mr Dixon must cast his memory back some 15 years to identify the location of the jobs which he worked at for Capital Hydraulic and he states that the three specific jobs he refers to are only examples of the work he did in NSW. However, those three specific jobs which Mr Dixon did for Capital Hydraulic in NSW only amount to no more than 2.5 weeks over a period of some 83 weeks that he worked for Capital Hydraulic between 7 July 2008 and 19 February 2010. The time worked in those three jobs, even if they are only listed as examples of the jobs he undertook for Capital Hydraulic in NSW, amount to 3% of the time that he was employed with Capital Hydraulic, which is well short of the 20% of time that 
Mr Dixon estimates he worked for Capital Hydraulic in NSW. 
40.	Mr Dixon states that he regularly crossed the NSW/ACT border to attend to the jobs he was directed to do, but that must have occurred for the jobs he undertook in the ACT because he lived in Goulburn during the period when he was employed with Capital Hydraulic.
41.	Deputy President Roche in Martin endorsed the approach taken in Falls and also Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (Knight) that the test for ‘usually works’ is not simply a mathematical exercise or where the worker worked for the majority of time. However, s 9AA (6) does require that regard be had to the worker’s work history, and the work history of Mr Dixon which is provided in this dispute places a substantial amount of the time that Mr Dixon worked for Capital Hydraulic in the ACT.
42.	The evidence provided by Mr Dixon which I have referred to, even in the absence of evidence from Capital Hydraulic, does not allow me to be satisfied that Mr Dixon habitually or customarily worked for Capital Hydraulic in NSW, or worked in a regular manner for Capital Hydraulic in NSW, when compared to the amount of time that he worked for Capital Hydraulic in the ACT. The available evidence does not allow me to make a definitive finding that Mr Dixon usually worked in NSW while employed with Capital Hydraulic.
43.	There is no evidence of Mr Dixon being required to work in ‘any temporary arrangement’ in either NSW or the ACT, so that s 9AA (6) as it relates to any temporary arrangement has no application to this dispute.
44.	Mr Dixon only worked in the State of NSW and in the ACT, but my finding that Mr Dixon did not usually work in NSW does not mean that by default he usually worked in the ACT. The decision of Knight involved the worker only working in two States (Western Australia and Victoria), but Commissioner Herron of the District Court of Western Australia was unable to determine where the worker usually worked and was therefore required to move onto the ‘usually based’ test.
45.	The amount of time which Mr Dixon states that he worked in the ACT for Capital Hydraulic provides compelling evidence that Mr Dixon usually worked in the ACT for Capital Hydraulic. However, I am reluctant to make a finding that Mr Dixon usually worked in the ACT for Capital Hydraulic from the limited evidence provided by Mr Dixon and without there being any evidence on this issue from Capital Hydraulic. 
46.	The purpose of s 9AA (3) of the 1987 Act, as has been noted in Martin, is to provide for “cascading tests” to be applied if a definitive answer cannot be given for each of the three criteria in descending order in that sub-section. It is therefore necessary to move onto the ‘usually based’ test (s 9AA (3)(b)).
47.	I could not identify any evidence which allows for a finding that Mr Dixon was usually based in NSW for the purposes of his employment with Capital Hydraulic. Mr Dixon was based in NSW to the extent that he resided in that State, but there is no evidence that he was based in NSW for the purposes of his employment with Capital Hydraulic. Mr Dixon states that he was sent to work in NSW when required because he was the only drainer who held a NSW drainers licence, but there is no evidence that it was mandatory for him to reside in NSW to retain that particular licence.
48.	Several factors for determining the ‘usually based’ test which are set out in Martin suggest that it was the ACT where Mr Dixon was usually based for the purposes of his employment with Capital Hydraulic because it would appear that it was a location in the ACT where 
Mr Dixon received directions and reported to in relation to his work. However, I am again reluctant to make a definitive finding that Mr Dixon was usually based in the ACT for the purposes of his employment with Capital Hydraulic without any evidence from Capital Hydraulic on this issue.
49.	The cascading test therefore reaches s 9AA (3)(c) of the 1987 Act, being the employer’s principal place of business in Australia, and which in Knight was described as the “chief”, most important or main place of business from where the employer conducts most or the chief part of its business (at [66]).
50.	Mr Dixon states that the head office of Capital Hydraulic was located in Mitchell in the ACT. That is confirmed in an email from the lawyers for Mr Dixon to EML on 8 February 2023. 
Mr Dixon does not specifically state the location from where his directions for work for Capital Hydraulic came from, but he does state that he went to whatever job Capital Hydraulic sent him to. 
51.	The evidence provided by Mr Dixon, when that is combined with the uncontested evidence that the head office of Capital Hydraulic was located in the ACT, allows me to conclude that the principal place of business in Australia for Capital Hydraulic during the period that 
Mr Dixon was employed with Capital Hydraulic was located in the ACT.
52.	Section 9AA (3)(c) can therefore be applied to resolve this particular dispute. As a consequence, compensation is not payable by Capital Hydraulic or icare because Mr Dixon’s employment with Capital Hydraulic was not connected to the State of NSW.
Whether J M Hargreaves (NSW) Pty Ltd (de-registered) is the applicant’s last noisy employer  
53.	Ms Goodman on behalf of Hargreaves submits that the Commission would not be satisfied from the evidence from Mr Dixon and the medical evidence that Mr Dixon’s employment of no more than two weeks with Hargreaves had the tendency, incidents or characteristics of employment which would give rise to a real risk of boilermaker’s deafness. 
54.	Ms Goodman refers to Mr Dixon’s evidence that he was exposed to excessive noise for six to seven hours per day in an eight hour shift while working for Hargreaves. She refers to the decision of Neilson CCJ in Callaby v State Transit Authority (NSW) [2000] NSWCC 30; 21 NSWCCR 216 (Callaby) of a ‘rule of thumb’ that a worker has a real risk of suffering industrial deafness if that worker is exposed to excessive noise for eight hours per day. 
Ms Goodman submits that Mr Dixon’s own evidence falls short of this guideline. 
55.	Neilson CCJ in Callaby referred to a previous decision of Wright v State Transit Authority NSW (7 February 1996, no.31343 of 1993, unreported) (Wright) wherein Geraghty CCJ said:
“Given that the present industrial standard in New South Wales is 90 dB(A) over an 8 hour working day, many experts seem to agree that it should be 85 dB(A) and that the standard will shortly be reduced to reflect that conclusion.”
56.	Neilson CCJ then said in Callaby at [27]:
“I have no hesitation…in finding a level of 85 dB(A) LAeq is sufficient to carry the risk of inducing industrial deafness….However, if it be thought I am deciding this case on the facts in another case, the evidence before me makes it clear that it is not only the level of the noise but its duration which is important in determining whether the employment carries the risk of industrial deafness.”
57.	Dr Johnston does not provide an estimate of the noise level or the length of time each day that Mr Dixon was exposed to excessive noise with any of his past employers. Dr Fagan is prepared to opine that the noise which Mr Dixon was exposed to while working for Hargreaves was indicative of ambient noise levels in excess of 90dB and that more than two hours of such exposure would be hazardous to a person’s hearing. 
58.	I agree with a submission made by Mr Stanton on behalf of Mr Dixon that it is readily apparent from the ‘Description of noise levels, duration and hearing protection’ which 
Dr Fagan summarises for Mr Dixon’s employment with Hargreaves that the length and level of exposure to noise during that employment was hazardous to Mr Dixon’s hearing. Dr Fagan as an ear nose and throat specialist is well qualified to provide such an opinion.
59.	In State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi), DP Roche said at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.” 
60.	Both Dr Fagan and Dr Johnston identify Capital Hydraulic as Mr Dixon’s last noisy employer, but Mr Dixon’s employment with Capital Hydraulic was not connected to the State of NSW. Although Dr Fagan does not specifically opine that Hargreaves was Mr Dixon’s last employer in NSW wherein the tendency, incidents or characteristics of employment would give rise to a real risk of boilermaker’s deafness, I accept that the opinion he does provide in regard to that employment is sufficient to conclude that Hargreaves was Mr Dixon’s last noisy employer in NSW for the application of s 17 of the 1987 Act.
61.	I prefer the opinion from Dr Fagan over that provided by Dr Johnston because Dr Fagan specifically addresses the length and level of noise which Mr Dixon was exposed to while employed with Hargreaves, whereas Dr Johnston only records that there was “significant exposure” to jackhammers, saws and general construction noise.
62.	Mr Dixon is not able to identify the exact dates when he was employed by Hargreaves in February 2005. I will therefore fix the deemed date of injury to be last day in the month of February 2005, being 28 February 2005.
Orders of the Commission 
63.	This matter will be remitted to the President for referral to a Medical Assessor to assess whole person impairment for hearing loss sustained by Mr Dixon while employed by Hargreaves with a deemed date of injury of 28 February 2005.
64.	Both Dr Fagan and Dr Johnston consider that the bilateral hearing aids are reasonably necessary for the severity of the hearing loss that Mr Dixon has sustained due to exposure to excessive noise. Ms Goodman on behalf of Hargreaves concedes that an order can be made for Hargreaves to pay for the cost of the fitting and supply of bilateral hearing aids to 
Mr Dixon if Hargreaves is found to be the last noisy employer of Mr Dixon in NSW.
65.	There will therefore be an order that Hargreaves is to pay for the fitting and supply of bilateral hearings aids pursuant to s 60 (5) of the 1987 Act and in accordance with the Hearing Aid Fess and Practice Requirements issued by SIRA effective as of 1 February 2024.