CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Beattie v Infrabuild Wire Pty Ltd [2025] NSWPIC 78	
		
APPLICANT:	Drew John Beattie	
		
RESPONDENT:	Infrabuild Wire Pty Ltd	
		
Member:	Adam Halstead	
		
DATE OF DECISION:	10 March 2025	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for the cost of treatment; bilateral hearing aids; whether reasonably necessary as a result of undisputed noise induced hearing loss; respondent contends minor contribution only by occupational and that hearing loss insufficient; differing results of audiograms and medical opinion relied upon by the applicant and respondent; Taxis Combined Services (Victoria) Pty Ltd v Schokman, Murphy v Allity Management Services Pty Ltd, Bluescope Steel v Sekulovksi, and Diab v NRMA Insurance Ltd cited; Held – respondent liable for the provision of bilateral hearing aids; reasonably necessary due to work related noise exposure.	
determinations made:	The Commission determines:
1.	Bilateral hearing aids are reasonably necessary treatment for the applicant’s work injury hearing loss.
2.	The respondent is liable for the costs of supply and fitting of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 as contained in the quotation obtained from Freedom Hearing on or about 24 February 2023, or otherwise on the production of accounts and/or receipts, and in accordance with the Workers Compensation (Hearing Aid Fees) Order 2023.

A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS
BACKGROUND
1.	The applicant, Drew John Beattie, was employed by the respondent, Infrabuild Wire Pty Ltd, for about 40 years. He claims that exposure to industrial noise during that employment has affected his hearing to the extent that hearing aids are necessary. A dispute has arisen between the parties about the cost of hearing aids and whether the respondent is liable for the cost of providing those to the applicant.
2.	It is undisputed the applicant suffers hearing loss, part of which is related to workplace injury. The respondent does not accept that the provision of hearing aids to the applicant are reasonably necessary given its contention of a limited contribution of workplace noise exposure to total hearing loss.
3.	An Application to Resolve a Dispute (ARD) related to the claim was filed by the applicant in the Personal Injury Commission (Commission) on 29 October 2024. The ARD refers to a dispute about medical expenses for the cost of hearing aids in the amount of $6,650.20.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
4.	The matter was before the Commission for an arbitration hearing on 29 January 2025. 
Mr McManamey of counsel, instructed by Ms Faura solicitor, appeared for the applicant. 
Ms Caldwell solicitor instructed Mr Rickard of counsel who appeared for the respondent.
5.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. They have been unable to reach an agreed resolution of the dispute.
ISSUE FOR DETERMINATION
6.	The issue to be determined is whether, as a result of employment related hearing loss, it is reasonably necessary for the respondent to meet the cost of hearing aids for the applicant.
EVIDENCE
Applicant’s evidence
7.	In his 24 June 2024 statement, the applicant recounts that during employment with the respondent, from 1979 to 2019, he worked as a wire drawer and lubricant technician. As part of that work, he was:
“…exposed to noise from heavy industrial machinery, wire drawing machine, trucks coming in and out, gas forklifts, jackhammers, air compressors, grinders, drills, banging of metal and steels, lathes, furnaces and general worksite related noise.”
8.	Although the respondent “did provide [him] with hearing protection” while on the job, it was “an extremely noisy” workplace environment according to the applicant.
9.	During the five years to making the statement, the applicant “noticed progressive hearing problems”, including difficulties hearing television and telephone calls, understanding speech from women or people who speak softly, difficulty understanding speech at all in situations with background noise and in group settings and has “intermittent ringing noise” in his ears.
10.	For about two months from December 2013 to February 2014, the applicant completed a trial of hearing aids. With the assistance of the device, the applicant “was able to understand speech from the television more clearly and was able to reduce the volume”. He “could also understand speech through the telephone more clearly even if there was background noise”. The effect of background noise was said to be “significantly reduced”, and his “hearing also improved in group situations”. This all resulted in the applicant feeling “more confident whilst wearing the hearing aids”.
Dr Paul Fagan
11.	Dr Fagan, an ear nose and throat surgeon, examined the applicant on 21 March 2023, obtained an employment and symptom history (consistent with that given by the applicant in his 24 June 2024 statement) and provided a report dated 28 March 2023 wherein he opined as to diagnosis:
“The hearing loss in the right ear as demonstrated on the audiogram is consistent with industrial hearing loss. The additional sensorineural hearing loss in the left ear is of uncertain aetiology. Determining which frequencies should be taken into account when assessing noise induced hearing loss depends on the facts in each individual matter. Where a claimant has been exposed to occupational noise as described to me, and for 40 years as in this matter, and has hearing loss as in this matter, I am satisfied the hearing loss from 1000 Hz to 4000 Hz is caused by occupational noise exposure. My assessment is consistent with examples 9.1, 9.2, 9.3 and 9.6 at pages 46 – 51 of the NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment (4th edition) April 2016.
The thresholds in the left ear should be equated to those of the right ear for calculation of noise induced hearing loss in accordance with chapter 9.12 of NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment (4th edition) April 2016.”
12.	The applicant was also assessed by Dr Fagan as experiencing intermittent mild tinnitus.
13.	In considering hearing loss attributable to employment, and with reference to audiogram results, Dr Fagan assessed the applicant with total binaural hearing impairment of 12.5%, where the component of occupational hearing impairment was 6.5% (including adjustment of 1.7% for age related hearing loss).
14.	Dr Fagan considered the nature and severity of the applicant’s hearing loss and tinnitus warranted hearing aids, which would be “reasonable and necessary as a result of the injury”. The “noise induced” (that is, employment related) hearing loss and tinnitus was identified as a “material contributor” to the applicant’s need for hearing aids according to Dr Fagan. 
Dr Sylvester Fernandes
15.	The respondent qualified Dr Fernandes, ear nose throat and facial plastic surgeon, who examined the applicant on 11 October 2023 in relation to his claimed hearing loss. A report dated 16 October 2023 was provided. The history obtained by Dr Fernandes was consistent with the earlier versions given by the applicant, where symptoms were said to be hearing loss that had been “gradual, progressive and bilateral for approximately 30 years”. Tinnitus was reportedly “denied”.
16.	Dr Fernandes diagnosed (unedited):
“1. Noise induced hearing loss in the upper middle and treble frequencies and
2. an excess loss of uncertain origin (non occupational*) in the bass and lower middle frequencies and
3. age related hearing loss and
4. an additional excess loss of unknown origin (non noise induced) on the leftt side”
17.	An audiogram was conducted on the applicant and Dr Fernandes commented that:
“He responded well to the subjective aspects of the audiogram which was carried out in accordance with the Workcover Guides Chap 9.8 p 43. An accurate hearing test was achieved, for there was very good intratest reliability.
Mr. Beattie has an asymmetric hearing loss, with the left side being worse than the right side.
Noise induced hearing loss is essentially symmetric, as in most occupational environments, the ears are exposed to similar sound levels bilaterally, even when the apparent noise source comes from one side. The subject thinks the noise is all on one side because of the precedence effect, which causes a perceptual lateralisation of the source to the ear getting the higher exposure, even when the difference is only one dB or so.
Hence in the instant case, the left ear is equated to the right. As a result, the hearing loss on the right side has been taken into consideration for the calculation of noise induced hearing loss on the left side. He has been instructed to seek further attention for the elucidation of the causative element in the excess hearing loss which is not noise induced.
The frequencies below 1.5 KHz are not included in the calculation because:
1. The configuration of the audiogram obtained in the frequencies of 1.0 and 1.5 KHz (on the considered side) is not compatible with that of a noise induced hearing loss. In noise induced hearing losses, the threshold at a higher frequency is not equal or not better than that of a lower frequency. Note that the threshold at 1 KHz is worse than the threshold at 1.5 KHz (on the considered side). This is not consistent with the manner in which a noise induced lesion spreads to the lower frequencies. In other words, the thresholds at 1.0 KHz and lower are not related to a noise induced hearing loss.
After consideration of the nature and duration of occupational noise exposure and the nature and extent of all the hearing losses, including those at 0.5, 1 and 1.5 KHz, the hearing losses at 1.5 (if any), 2, 3 and 4 KHz are caused by his occupational noise exposure.”
18.	Total binaural hearing loss of 8.4% was found to be present where 3.7% was occupational according to Dr Fernandes. A reduction of 2% was made for age related hearing loss leaving 1.7%. Notwithstanding an addition of 2% was made for tinnitus, despite that condition having been noted as “denied” earlier in the report, that value appears to have not been factored into to the final impairment rating of 1.7%.
19.	In commenting on the 28 March 2023 report, Dr Fernandes noted that Dr Fagan had “obtained higher thresholds”. He was also “unable to comprehend the rationality” of 
Dr Fagan’s binaural hearing loss assessment of 6.5%. 
20.	Dr Fernandes concluded that hearing aids were “not reasonably necessary as a result of the compensable injury” because it appeared “that the speech reception frequencies are not significantly affected on the considered side”.
APPLICATION OF THE LAW, FINDINGS AND REASONS
21.	Section 60 of the Workers Compensation Act 1987 (the Act) provides that if, as a result of an injury received by a worker, medical or related treatment is reasonably necessary, then the employer is liable to pay the related cost. It is undisputed the applicant suffers employment related hearing loss, being an injury for the purposes of the Act.
22.	The applicant has the onus to establish, on the balance of probabilities, the provision of hearing aids is reasonably necessary as treatment for the work-caused injury. I must have a “a sense of actual persuasion” that the reasonable necessity exists and that it results from the injury as claimed: Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
23.	The concept of reasonable necessity of a particular treatment was considered by Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). The fundamental question: “is it better that the worker have the treatment or not?” That is, are there reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment.
24.	Other matters are also relevant for consideration and include, but not limited to, the appropriateness of the treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
25.	It is well established that there needs to be a commonsense evaluation of the causal chain that the treatment is reasonably necessary “as a result of the injury”: Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452 (Kooragang). The worker must establish that “the injury was a material cause of the need for the proposed treatment … even if other factors were also present that may have contributed to that need”: Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman). 
26.	In BlueScope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48 (Sekulovski), Wood DP referred to the relevant test as set out in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) that in order to satisfy the test of causation implied by the expression “results of”, it is not necessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment. It is sufficient to establish only that the injury “materially contributed” to that need and “a condition can have multiple causes”.
27.	In my view, the medical opinions of both Dr Fagan and Dr Fernandes both indicate the occupational component of the applicant’s hearing loss are of substance. Although there is clearly a difference of opinion about the total hearing loss and occupational contribution, both accept the applicant suffers hearing loss as a result of exposure to noise in the course of employment over many years.
28.	The differences in opinion between the specialists is not a matter that necessarily weighs against the applicant’s case. They both accept the noisy work environment contributed to the applicant’s hearing loss, albeit with Dr Fagan assessing a greater proportion of the overall hearing loss as work-related. The lesser value attributed by Dr Fernandes for the occupational component is nonetheless substantially greater than de minimis and is accepted as being of consequence to the total hearing loss suffered by the applicant.
29.	Although the test to be applied is not one of comparison between the ratios between noise induced hearing loss and the overall hearing loss, it is noted Dr Fagan assessed that ratio at about one half and Dr Fernandes one fifth (excluding the tinnitus component; apparently nearly one half if it is included). Both assessments of the ratio of noise induced hearing loss are accepted to be significant in the context of the applicant’s total hearing loss.
30.	Applying the “common sense test of causation” from Kooragang, I am reasonably satisfied the expert medical opinion from both parties establishes a material contribution by the noisy work environment over a 30-year period to the applicant’s hearing loss and for the resulting need for hearing aids.
31.	When applying the commonsense test of causation to reach that conclusion, it was taken into account that there is no evidence of the applicant having other significant noise exposure aside from work with the respondent. Allowance was also made by the experts for age-related hearing loss and greater left side loss of unknown origin (noting no relevant medical history was identified or other relevant noisy environment exposure). Although not necessarily the main cause, I am reasonably satisfied the applicant has discharged the onus for a material contribution of the noisy workplace to his hearing loss.
32.	Dr Fernandes considered the type of hearing loss that required hearing aids not to be of an occupational nature and so the provision of hearing aids is not related to employment injury. However, Dr Fernandes appears to have applied restrictions to that assessment being confined to “speech reception frequencies”. Although undoubtedly an important frequency range, the applicant should also have available to him, using hearing aids, the improved ability to hear other important frequencies in the course of daily living that have been impacted by the noisy work environment. Dr Fagan did not apply such limitation, and I consider to do so would seem to be somewhat arbitrary where it has been found employment made a material contribution to the need for hearing aids.
33.	The expert medical evidence is that hearing aids are the available effective, appropriate and accepted treatment for hearing loss. The applicant’s evidence of the hearing aid trial demonstrates his quality of life will be improved with on-going use. The question posed in Diab can be answered in the affirmative in the circumstances. That is, it will be better for the applicant to receive the treatment (hearing aids), because it has been confirmed by the trial.
34.	The applicant has provided a quotation for the provision of hearing aids from Freedom Hearing in relation to an assessment on 24 February 2023 of $6,650.20. There is also what appears to be a related supplementary letter of 10 May 2024. The quotation refers to the type of hearing aids identified by Dr Fagan as suitable treatment for the applicant. In as far as that quotation is consistent with the Workers Compensation (Hearing Aid Fees) Order 2023, the respondent is liable for the quoted cost. Otherwise, the respondent is liable for the cost of hearing aid treatment as provided in that Order.

SUMMARY
35.	As a result of his workplace induced hearing loss injury, it is reasonably necessary for hearing aids to be provided to the applicant as treatment for that injury.