CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Winters v Endeavour Energy [2021] NSWPIC 375	
		
APPLICANT:	Ross Winters	
		
RESPONDENT:	Endeavour Energy	
		
Member:	Glenn Capel	
		
DATE OF DECISION:	28 September 2021	
		
CATCHWORDS:	WORKERS COMPENSATION -  Claim for hearing aids; no dispute regarding noisy employment and last noisy employer; dispute in respect of notice of injury and notice of claim, and whether hearing aids were reasonably necessary to address small level of industrial deafness; worker unaware that he suffered an injury at the respondent until qualified medical evidence and legal advice was provided; worker had non-work related hearing loss and a lesser degree of industrial deafness; Inghams Enterprises Pty Ltd v Jones, Bluescope Steel (AIS) Pty Ltd v Sekulovski, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Matthews v State Rail Authority of New South Wales, and Murphy v Allity Management Services Pty Ltd discussed and applied; Held – worker gave valid notice of injury and made a valid claim; employment materially contributed to the need for reasonably necessary hearing aids; award for the worker for medical expenses.
	
determinations made:	1.	The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 7 November 2018 (deemed).

2.	The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act 1987.

3.	The applicant became aware and gave notice of his injury on or about 17 December 2020.

4.	The applicant gave notice of a claim for compensation on or about 17 December 2020.

5.	The applicant complied with sections 254(1) and 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 by reason of s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998.

6.	The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury.

7.	The respondent is liable for the cost of hearing aids.
	
OrDERS MADE:	8.	The respondent is to pay the applicant $5,495 for hearing aids on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1.	Ross Winters (the applicant) is 57 years old and was employed by Endeavour Energy (formerly Energy Australia) (the respondent and self-insurer) as an electrical fitter from 
24 November 2001 until he ceased work due to a neck injury on 7 November 2018.

2.	There is no dispute that the applicant developed sensorineural hearing loss as a result of exposure to industrial noise at the respondent, and that the respondent was the last noisy employer for the purposes of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act).

3.	On 17 December 2020, the applicant’s solicitor served a notice of claim on the self-insurer for the cost of hearing aids pursuant to s 60 of the 1987 Act. 

4.	On 23 December 2020, the self-insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had suffered an injury, that his employment was a substantial contributing factor to his condition, that the respondent was the last noisy employer, and that the provision of hearing aids was reasonably necessary. Finally, it disputed that the applicant had given notice of his injury and had made a claim for compensation in accordance with the legislation. It cited ss 4, 9, 9A,17 and 60 of the 1987 Act and ss 254 and 261 of the 1998 Act.

5.	On 16 February 2021, the self-insurer issued a further notice pursuant to s 78 of the 1998 Act, disputing that it was liable for the payment of hearing aids and disputing that he had complied with the notice provisions. It cited s 60 of the 1987 Act and ss 254 and 261 of the 1998 Act.

6.	The applicant filed an Application for Expedited Assessment in the Personal Injury Commission (the Commission) on 15 July 2021. At a telephone conference before me on 
16 September 2021, I ordered that the matter be transferred and be dealt with as Form 2 – Application to Resolve a Dispute (the Application) pursuant to s 310 of the 1998 Act.

7.	The applicant claims medical expenses for hearing aids pursuant to s 60 of the 1987 Act as a result of injury arising out of or in the course of his employment with the respondent on 
7 November 2018 (deemed). 

PROCEDURE BEFORE THE COMMISSION

8.	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 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.

ISSUES FOR DETERMINATION

9.	The parties agree that the following issues remain in dispute:

(a)	whether a valid notice of injury was given to the respondent – s 254 of the 1998 Act;

(b)	whether a valid notice of claim made on the respondent – s 261 of the 1998 Act, and

(c)	whether the provision of hearing aids is reasonably necessary and whether the respondent liable for payment– s 60 of the 1987 Act.

10.	The respondent’s counsel, Mr Baker, advised that he would not be making any submissions in respect of the dispute regarding notice of injury. He indicated that he did not have instructions to withdraw this issue.

Documents 

11.	The following documents were in evidence before the Commission and taken into account in making this determination:

(a)	The Application with attached documents;
(b)	Reply with attached documents;
(c)	Application to Admit Late Documents filed by the applicant on 
16 September 2021, and 
(d)	Application to Admit Late Documents filed by the respondent on
16 September 2021.

Oral evidence

12.	Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s claim form and statements

13.	The applicant completed a claim form on 21 August 2020. He indicated that he had suffered hearing loss over time as a result of exposure to noise in “normal workshop duties, operating and overhead crane, using pneumatic tools/hand tools, transformer maintenance, construction/testing” in the period 2001 to 2018. He advised that he first noticed the condition in 2006 and that he had been treated by Dr Kertesz.

14.	The applicant provided a statement on 5 May 2021. He stated that he has been employed by the respondent as an electrical fitter from 2001 until he retired on 7 November 2018 due to a neck injury. He had subsequently worked in a casual position from December 2018 to February 2019, but he was not exposed to any noise.

15.	The applicant indicated that he noticed the onset of tinnitus in his right ear in 2006 and in his ear in 2015. He found it harder and harder to hear, so he consulted Dr Kertesz in 2007. He was found to have right sided otosclerosis, and in 2009, he had surgery, which did not assist his hearing. 

16.	The applicant confirmed that he was exposed to noise from the drying oven, overhead cranes, pneumatic drills and workshop noise for eight hours per day. Hearing protection was not provided until 2011.

17.	The applicant stated that after he retired, he noticed that his hearing had deteriorated. He could not hear conversations in noisy environments, and he had difficulty hearing the television. He consulted Dr Kertesz, who told him that he had some noise induced hearing loss. The doctor recommended hearing aids which he purchased on 22 June 2020.

18.	The applicant stated that he consulted his solicitors, and he was referred to Dr Payten to determine whether his noise induced hearing loss was caused by his employment and whether he required the use of hearing aids. After receiving Dr Payten’s report dated 
27 November 2020, he instructed his solicitors to make a claim on the self-insurer for the cost of his hearing aids. The applicant advised that he was not aware that he could make a claim for the hearing aids until he received the report of Dr Payten in November 2020.
19.	In his statement dated 14 July 2021, the applicant indicated that he saw Dr Kertesz in about May 2020. The doctor conducted some hearing tests and told him that he had some industrial deafness. In or around July 2020, he sought legal advice, and he was informed that he would need to see a doctor to determine if he had suffered a work related injury.

20.	The applicant advised that he had never lodged an industrial deafness claim before, and he was not aware of any time limits. He retained his solicitors, and he then completed an industrial deafness questionnaire and a claim form in about August 2020. He was advised that he would be seeing an independent doctor to determine if he had a compensable workers compensation injury relating to his industrial deafness. He did not know at that stage whether he could claim the cost of the hearing aids from his employer.

21.	The applicant stated that he understood that the appointment with Dr Payten on 
23 November 2020 was made on about 9 October 2020. It was only when he was provided with Dr Payten’s report dated 23 November 2020 on about 17 December 2020 that he became aware that he has suffered hearing loss as a result of his employment at the respondent. He then gave instructions to his solicitors to make a claim, and this was done on or about 17 December 2020.

22.	In his final statement, the applicant stated that he had returned his trial hearing aids prescribed by Dr Kertesz on 12 June 2020 because they were too loud and caused itching in his ears. He purchased a cheaper set of hearing aids from Specsavers.

23.	The deafness questionnaire included details of the applicant’s exposure to noise during his employment from 1980 to 2018. 

Clinical notes and reports of Dr Kertesz

24.	Dr Kertesz initially reported on 29 May 2007. He noted that the applicant had experienced progressive hearing loss in his right ear for three to four months with associated tinnitus. There was a family history of otosclerosis, and the doctor reported that the applicant had been exposed to occupational noise. An audiogram showed mixed hearing loss, and he believed that the sensorineural loss was most likely a combination of cochlear otosclerosis and noise exposure. 

25.	Dr Kertesz referred the applicant for an MRI scan on 13 June 2007, which was normal, and he continued to monitor him over the next two years. The doctor eventually performed a right stapedectomy on 24 April 2009. The applicant’s hearing and symptoms of dizziness and taste disturbance improved following this procedure. 

26.	In reports dated 1 June 2010 and 5 July 2011, Dr Kertesz noted that there had been no change in the applicant’s hearing, and he still had some high frequency hearing loss and tinnitus. The applicant was reviewed by the doctor in July 2013 and July 2015, and he performed a tonsillectomy and diathermy of the applicant’s soft palate in February 2016.

27.	The applicant’s general practitioner, Dr Gellatley, referred the applicant to Dr Kertesz for assessment of any industrial hearing loss on 27 April 2020. In the handwritten notes of the consultation on 8 May 2020, Dr Kertesz recorded that the applicant had been employed as an electrical fitter for 30 years, he had worked with power tools, and his hearing was worsening. He was not provided with hearing protection in the early years. 

28.	According to the notes made by the audiologist on the audiogram, the applicant had problems hearing with his right ear. He had never tried hearing aids and he had a noisy work history. The audiologist noted: “Aid Discussion: May be eligible thru WorkCover - will find out. Wants top aids - regularly at the club with friends”.

29.	In a report dated 8 May 2020, Dr Kertesz confirmed that the applicant had otosclerosis and some binaural noise induced hearing loss which he assessed at 6.2%.

30.	Digital hearing aids were provided by SS Audiology Miranda Pty Ltd on 22 June 2020 in the sum of $5,495.

Report of Dr Payten

31.	Dr Payten reported on 27 November 2020. He recorded that the applicant noticed right-sided tinnitus in 2006 and left sided tinnitus in 2015. He noticed a deterioration in his hearing about 13 years ago, and his tinnitus had increased. After seeing Dr Kertesz, he had an operation on the right ear for otosclerosis. There had been no improvement in his hearing.

32.	Dr Payten recorded that the applicant had experienced a slight decline in his hearing over the years. He had a hearing test in May 2020, and his tinnitus had become louder. He felt that his hearing was probably worse because of the louder tinnitus. He had difficulty hearing his wife and the television, and also when he was in restaurants, pubs, and clubs in the presence of background noise. 

33.	Dr Payten reported details of the applicant’s exposure to noise at his previous employers and noted that at the respondent, he was exposed to the noise of drying ovens, an overhead crane, rattle guns and tools. He did not wear any hearing protection for the first ten years but did so after 2011. It was necessary to raise the voice to be heard at a distance of one metre for between 30% and 50% of the time.

34.	Dr Payten was satisfied that based on the applicant’s history, his employment with the respondent had the necessary incidents, characteristics and tendencies to be capable of causing noise-induced hearing loss and severe tinnitus. There had been no exposure to industrial noise since her retired in November 2018.

35.	Dr Payten assessed 7.5% binaural hearing loss after a deduction for unrelated hearing loss and presbycusis. He considered that the degree of occupational hearing loss was sufficient to justify the provision of hearing aids, which were reasonably necessary.

Report of Dr Howison

36.	Dr Howison reported on 10 February 2021. He recorded a consistent history of the applicant’s exposure to industrial noise in the past and at the respondent prior to 2018. On the basis of the applicant’s history, Dr Howison was satisfied that the applicant was exposed to an 8-hour equivalent continuous level of 90dB(A) or above, which was sufficient to cause industrial deafness.

37.	Dr Howison noted that the applicant had been diagnosed with right-sided otosclerosis and had surgery in 2009. Since that time he had been aware of a deterioration of hearing. He had difficulty understanding speech in the presence of background noise, and when listening to the television and telephone. He had also been troubled by tinnitus in his right ear since 2006 and in his left ear since 2015.

38.	Dr Howison was satisfied that the applicant’s employment at the respondent had the necessary tendencies, incidents, and characteristics capable of causing noise induced hearing loss. He assessed 5.9% binaural hearing impairment due to exposure to noise and a 14.3% non-occupational hearing impairment. This latter condition was the major reason for hearing aids, and not his industrial deafness. 

APPLICANT’S SUBMISSIONS

39.	The applicant’s counsel, Ms Compton, submits the applicant explained that after he retired, he noticed that this hearing had deteriorated, and he could not hear conversations. This evidence is important because the applicant’s hearing loss as a whole justified the need for hearing aids.

40.	Ms Compton submits that the applicant stated that he consulted Dr Kertesz, who conducted a hearing test that showed that he had a component of noise induced hearing loss. On his recommendation, the applicant purchased hearing aids on 22 June 2020.

41.	Ms Compton submits that s 261(1) of the 1998 Act provides that a claim should be made within six months after an injury is sustained, but s 261(4)(a) of the 1998 Act provides that a claim can be made within three years of an injury if the failure to make the claim in time was due to a worker’s ignorance. According to the authorities, a worker needs to be aware of an injury when a claim is made.

42.	Ms Compton submits that in his second statement, the applicant confirmed that Dr Kertesz told him in May 2020 that he had some industrial deafness, and in around July 2020, he sought legal advice after contacting the Union. His solicitor advised him that he would need to see a doctor to determine whether he had a work-related injury. He was not aware of any time limits. 

43.	Ms Compton submits that the applicant completed a questionnaire and claim form in about August 2020. He was not aware that he had a compensable injury and that he could claim the cost of the hearing aids until 17 December 2020 when read the report of Dr Payten dated 23 November 2020. He received legal advice, and he was no longer ignorant of his rights. A claim was lodged at that stage.

44.	Ms Compton submits that the applicant might have been aware that he had a hearing loss, but that does not mean that he knew that he had a work-related injury. In his report dated 
29 May 2007, Dr Kertesz indicated that the applicant’s sensorineural hearing loss was most likely due to a combination of otosclerosis and noise exposure. There is no evidence that this report was provided to the applicant.

45.	Ms Compton submits that the applicant saw Dr Kertesz on a regular basis, and he was not advised that he had industrial deafness at a level sufficient to make a claim on his employer. On 27 April 2020, Dr Gellatley referred the applicant to Dr Kertesz for an assessment of industrial hearing loss. It was not until May 2020 that Dr Kertesz told him that he had noise induced hearing loss, which he assessed at 6.2%. Such an assessment is consistent with assessments of Drs Payten and Howison.

46.	Ms Compton submits that the applicant was ignorant of the six-month time limit to bring a claim, and the claim was made within three years of 7 November 2018. He acted in a timely fashion, saw a doctor, and obtained legal advice. The timeframe from May 2020 to December 2020 was short. One can be satisfied that the applicant’s failure to make a claim within six months can be excused due to his ignorance, and there is no prejudice to the respondent.

47.	Ms Compton submits that hearing loss can result from multiple causes, but all the applicant needs to show is that the work-related component materially contributed to the need for treatment. According to Dr Payten, the applicant had 18.6% binaural hearing loss with a work related component of 7.5%, whilst Dr Howison assessed 19.3% binaural hearing loss with a work related component of 5.9%.

48.	Ms Compton submits that Dr Howison agreed that the applicant required hearing aids, but this was not to address the work related loss. However, this does not mean that the respondent is not liable, because the applicant has difficulty hearing conversations and the like. Dr Payten excluded the non-work related loss in his calculations and he only relied upon the loss of hearing in the applicant’s left ear when assessing the industrial deafness in his right ear. Accordingly, his opinion should be preferred.

49.	Ms Compton submits that a low level of hearing loss does not mean that hearing aids are not reasonably necessary. In Matthews v State Rail Authority of New South Wales, Senior Arbitrator Snell, as he then was, determined that hearing aids were reasonably necessary, even though the worker only had 1.7% binaural hearing loss. Similarly, in Bluescope Steel (AIS) Pty Ltd v Sekulovski, Deputy President Wood upheld the decision of Senior Arbitrator MacDonald, who determined that the provision of hearing aids was reasonably necessary for a worker who was assessed as having only 1.9% binaural hearing loss.

50.	Ms Compton submits that Dr Howson accepted that the applicant had a 5.9% binaural hearing loss due to industrial noise, but he did not explain why the need for hearing aids was not due to this loss. There is no doubt that there is a work related component to the applicant’s hearing loss, and Dr Payten’s opinion should be accepted. Even Dr Kertesz saw the need for the provision of hearing aids.

51.	Ms Compton submits that Dr Howison said that the applicant’s industrial deafness was not the main reason why he needed hearing aids, but that is not the test. The hearing aids must be reasonably necessary as a result of a work injury.

52.	In reply, Ms Compton submits that the objective evidence of an injury, rather than an inference, is the applicant’s awareness that he was injured. There is reference in the evidence that he might have had some industrial deafness, but that does not mean that he was aware of the ability to make a claim. He was not aware that he was injured and could make a claim until he obtained legal advice and was provided with the report of Dr Payten. An inference is not enough, one must consider the applicant’s evidence regarding his knowledge.

RESPONDENT’S SUBMISSIONS

53.	Mr Baker submits that the applicant has mixed hearing loss and he developed tinnitus in both ears. The applicant provided a statement in general terms, and over the years, his tinnitus, which is a multifactorial condition of no known cause, became louder. He had consulted Dr Kertesz, and no distinction was drawn between the applicant’s hearing loss and his work until May 2020.

54.	Mr Baker submits that in his statement, the applicant advised that his tinnitus had increased, and he found it harder to hear. This loss was a combination of otosclerosis, presbycusis and industrial deafness. He had surgery in 2007, but this did not assist him.

55.	Mr Baker submits that the applicant indicated that he had his hearing tested after he ceased work for the respondent in 2011, but it was not until May 2020 that he returned to see Dr Kertesz. The applicant said that Dr Kertesz told him that he had some noise induced hearing loss and he recommended hearing aids, which he purchased. Only a small component of the applicant’s hearing loss relates to noise.

56.	Mr Baker submits that the applicant did not mention precisely when he consulted his solicitors. He asserted that Dr Payten told him that he needed hearing aids for his hearing loss that was caused by his employment, but if that was the case, how does this explain the advice that was given to him by Dr Kertesz in May 2020. 

57.	Mr Baker submits that the applicant’s solicitor completed the claim form in August 2020, but Dr Payten did not examine him until 27 November 2020. The claim was finally made on 
17 December 2020. The suggestion by the applicant that he was not aware prior to seeing Dr Payten’s report is disingenuous and his evidence is unconvincing.

58.	Mr Baker submits that in his third statement, the applicant indicated that he returned the hearing aids on 12 June 2020, so he had hearing aids before he purchased the cheaper hearing aids on 22 June 2020.

59.	Mr Baker submits that in his referral dated 23 May 2007, Dr Gellatley reported that the applicant had been troubled by tinnitus for four months and he had been exposed to industrial noise in the past. In his report dated 29 May 2007, Dr Kertesz indicated that the applicant had otosclerosis and noise induced hearing loss, so both doctors were aware that the applicant had been exposed to noise and he had industrial deafness. The applicant would have been told what he should do.

60.	Mr Baker submits that the applicant indicated in the questionnaire that he had been exposed to industrial noise and the clinical notes of Dr Kertesz refer to the applicant working in noisy environments. The applicant thought that his hearing was worse when he was referred to Dr Kertesz in June 2020, but the doctor advised that there had been no change.

61.	Mr Baker submits that Dr Gellatley referred the applicant to Dr Kertesz on 27 April 2020 for assessment of any industrial hearing loss. In his handwritten notes on 8 May 2020, Dr Kertesz recorded that the applicant’s hearing loss had been worsening and there was a history of exposure to industrial noise. 

62.	Mr Baker submits that the audiology consultation notes dated 8 May 2020 recorded that the applicant had a noisy work history, and that he might be eligible for hearing aids through WorkCover. In his report dated 8 May 2020, Dr Kertesz advised that the applicant had a component of noise induced hearing loss, and he assessed 6.2% binaural hearing loss. This is unlike his earlier reports.

63.	Mr Baker submits that one can infer that it is logical that one would go back to see the treating ENT specialist regarding his deafness if he was pursuing this type of claim. This is consistent with the audiologist’s notes which predate Dr Kertesz’ report. The applicant had issues with the hearing loss in his right ear due to otosclerosis and this had little to do with the noise induced hearing loss.

64.	Mr Baker submits that it is disingenuous to assert that the applicant had to see Dr Payten in respect of his hearing aids and for comment on causation when Dr Kertesz prescribed had hearing aids to treat the applicant’s right ear condition.

65.	Mr Baker submits that the applicant was on notice regarding his industrial deafness since 2007. His condition deteriorated and any deterioration after November 2018 had nothing to do with noise exposure. Section 261 of the 1998 Act says that a claim must be made within six months of injury, and the applicant was aware in 2007, and more clearly in April 2020 when he was referred to Dr Kertesz.

66.	Mr Baker submits that in May 2020, Dr Kertesz, an experienced ENT independent medical examiner, made no mention of the need for hearing aids being due to the applicant’s limited industrial deafness. According to his notes, the applicant was complaining about his right ear, so Dr Kertesz prescribed hearing aids, not for any noise induced hearing loss.

REASONS

Was a valid notice of injury given to the respondent? – s 254 of the 1998 Act

67.	Section 254 of the 1998 Act provides:

“254 Notice of injury must be given to employer

(1) 	Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

(2) 	The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.

(3) 	Each of the following constitutes special circumstances:

(a) 	the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,

(b) 	the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,

(c) 	the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,

(d) 	the injury has been reported by the employer to the Nominal Insurer in accordance with this Act….”.

68.	In Inghams Enterprises Pty Ltd v Jones, Deputy President Roche considered the principles regarding a worker’s awareness of an injury in the case of industrial deafness. Whilst his focus was on s 261 of the 1998 Act, his comments equally apply to s 254 of the 1998 Act. He stated:

“…In general, a worker will be aware he has received an injury if he is aware of facts and circumstances, which, if accepted, give rise to an entitlement to compensation. However, determining awareness of receipt of an injury in the nature of boilermaker’s deafness is more difficult than it is with injuries that result from a specific traumatic or injurious incident. 

The Macquarie Dictionary defines ‘aware’ as ‘cognisant or conscious’; the New Shorter Oxford English Dictionary has, as its second meaning, ‘conscious, sensible, not ignorant, having knowledge’. In the context of s 261, I believe that ‘aware’ means knowledge or knowing. There is nothing in the section, or the context of the legislation as a whole, that suggests that a worker must become aware in any particular way. The worker may become aware on receipt of one, and only one, piece of information. Alternatively, a worker may first become aware he has received an injury after having received several pieces of information gathered over time. 
The test is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical reasonable person. The worker must be actually aware, not constructively aware. In determining when a worker became aware he has received an injury it is necessary to have regard to the worker’s state of knowledge at the relevant time. A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work. Because of the insidious nature of boilermaker’s deafness, and lack of general knowledge in the community of its cause, awareness that a worker has received a s 17 injury will usually require specialised knowledge that will normally come from an appropriate expert in the field. 
 In a claim for compensation for boilermaker’s deafness, a worker is aware that he has received an injury to which s 17 applies when he is aware of two things. First, that he has sensorineural hearing loss (boilermaker’s deafness and any deafness of a similar origin (s 17(2)), which is a loss of hearing of such a nature as to be contracted by a gradual process. As noted above, because many things unrelated to employment can cause hearing loss, it is not sufficient that the worker is merely aware of a gradual loss of hearing. In addition, and second, though liability will ultimately fall on the employer who last employed the worker in employment to the nature of which the injury was due, as opposed to the employer who actually caused the hearing loss, the worker must be aware that his hearing loss has been contributed to by his employment.
Each case will turn on its own facts. In some cases, a worker will not be aware that he has received an injury until he has obtained expert medical evidence and advice on the relevance of that evidence. That was the situation in Heatcraft Australia Pty Ltd v Lapa [2007] NSWCCPD 27 (a hearing loss claim) and in Griffin v Qantas Airways Ltd [2010] NSWWCCPD 22 (a psychological injury claim). Neither case is determinative of the result in the present matter, but each provides an example of the kind of information required before a worker will be aware that he has received an injury.”

69.	According to the evidence, the applicant consulted his solicitor in about July 2020, although given that a claim form was completed by him on 21 August 2020, it seems more likely that would have seen his solicitors shortly before that date. His solicitors told him that he would need to see a doctor to work out if he had a work-related injury. 

70.	The industrial deafness questionnaire completed by the applicant identified his past employers and the noise exposure since 1980, so it is feasible that the noise to which he was exposed at any of these employers might have caused or contributed to his industrial deafness. 

71.	The applicant indicated in his claim form that he had suffered hearing loss over time from 2001 to 2018 as a result of exposure to workplace noise. He first noticed the condition in 2006 and he had been treated by Dr Kertesz. So as of 21 August 2020, he must have had some knowledge of the possibility that he could make a claim against the respondent, but at that stage, there was no medical evidence addressing the issue of causation.

72.	According to his statement, the applicant was told by Dr Kertesz that he had some noise induced hearing loss. There is no evidence to suggest that Dr Kertesz told the applicant that his industrial hearing loss was caused by exposure to noise at the respondent, or that he could make a claim against it. The doctor merely indicated in his report dated 8 May 2020 that the applicant had a component of noise induced hearing loss, without commenting on which noisy employer was responsible.

73.	According to the applicant, he first became aware that he had a hearing loss as a result of exposure to noise at the respondent, and that he could make a claim, when he was provided with a copy of the report of Dr Payten on or about 17 December 2020. There is no evidence to challenge the applicant’s assertions.

74.	Mr Baker submits that the applicant’s evidence regarding the awareness of his work injury cannot be accepted. It is true that the applicant had hearing aids before 12 June 2020, given that the audiologist tested his hearing in May 2020, but that does not mean that the applicant was aware of his injury, particularly since he had worked in noisy employment from 1980 to 2018. 

75.	The noise induced component of the applicant’s hearing loss had been the subject of comment on a number of occasions since 2007, but there was an absence of any comment regarding the source of the noise and the potential of making a claim. 

76.	It was not until 27 April 2020 that Dr Gellatley referred the applicant to Dr Kertesz for review with respect to his industrial deafness. Shortly after the audiologist raised the possibility of a claim on 8 May 2020, the applicant sought legal advice, but even at that stage, there was no firm opinion regarding an injury sufficient to make a claim.

77.	The fact that Dr Kertesz’ views were not sought with a view to making a claim is in my view of no great concern. Rarely do workers in this jurisdiction rely on assessments provided by treating doctors, whose focus is on treatment and on recovery, rather than on medico-legal assessment for compensation.

78.	It is true that Dr Kertesz was initially seen for treatment of the applicant’s right sided otosclerosis and bilateral tinnitus, and whilst the focus may well have been on the applicant’s right ear, the doctor recommended bilateral hearing aids, rather than a hearing aid only for the right ear. 

79.	Therefore, the unchallenged evidence establishes that the applicant became aware of his injury at the time that the solicitor served the notice of claim on 17 December 2020. Whilst he might have suspected that he had an entitlement when he completed the claim form on 
21 August 2020, the form was not submitted to the respondent at that stage, because there was no medical evidence in existence to support the claim. He was ignorant of the fact that he had suffered an injury, until he was provided with the report of Dr Payten.

80.	Accordingly, I am satisfied that the applicant gave a notice of injury as soon as he became aware of his injury and his failure to give notice in accordance with s 254(1) of the 1998 Act can be excused by reason of s 254(3)(b) of the 1998 Act, because this was occasioned by ignorance of his injury and his entitlement to claim compensation.

Was a valid notice of claim made on the respondent? – s 261 of the 1998 Act

81.	The relevant subsections of s 261 of the 1998 Act provide:

 “261 Time within which claim for compensation must be made

(1)	Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
….

(4)	The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:

(a) 	the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

(b) 	the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.…

(6) 	If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”

82.	The applicant was not aware that he sustained an injury until Dr Payten’s report was made available to him. At around the same time, his solicitors served a notice of claim on the respondent. The applicant could not have made a claim within six months of his injury on 
7 November 2018 (deemed) because he was not aware that he had suffered an injury whilst in the employ of the respondent. In any event, s 261(4)(a) of the 1998 Act would excuse any such failure.

83.	According to his second statement, he had never lodged an industrial deafness claim in the past, and he was not aware of any time limits regarding the reporting of an injury and making a claim. His evidence is unchallenged.

84.	Section 261(6) of the 1998 Act provides that the injury is taken to have been received when the worker becomes aware of his injury. As he first became aware of his injury on 
17 December 2020, there has been no failure on his part to make a claim in accordance with s 261(1) of the 1998 Act. Even if he became aware of his injury on 21 August 2020, when he completed the claim form, the claim was still made on the respondent within six months of that date.

85.	Accordingly, I am satisfied that the applicant made a valid claim in accordance with s 261 of the 1998 Act on 17 December 2020.

Is the proposed treatment reasonably necessary as a result of the applicant’s injury at the respondent and is the respondent liable for the payment of medical expenses?

86.	There is no dispute that the respondent was the last noisy employer, and that the applicant requires bilateral hearing aids. What is in issue is whether the provision of bilateral hearing aids is reasonably necessary to address the applicant’s noise induced hearing loss.

87.	Section 60 of the 1987 Act provides:

“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:

(a) 	any medical or related treatment (other than domestic assistance) be given, or
(b) 	any hospital treatment be given, or
(c) 	any ambulance service be provided, or
(d) 	any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.

88.	What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW), Burke CCJ stated:

“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.” 
89.	Further, His Honour added:

“1. 	Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.

2. 	However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.

3. 	Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.

4. 	It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.

5. 	In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

90.	His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service and stated:

“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”

91.	In Diab v NRMA Ltd, Deputy President Roche questioned this approach and cited Rose with approval. He provided a summary of the principles as follows:

“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:

(a) 	the appropriateness of the particular treatment;
(b) 	the availability of alternative treatment, and its potential effectiveness;
(c) 	the cost of the treatment;
(d) 	the actual or potential effectiveness of the treatment, and
(e) 	the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.

While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.

92.	Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case, applying the common-sense evaluation of the causal chain as discussed by Kirby J in Kooragang Cement Pty Ltd v Bates.

93.	The provision of hearing aids is an appropriate, accepted and effective form of treatment for industrial deafness, and it comes at a minimal cost. Hearing aids have the potential of improving the applicant’s quality of life and there is really no alternative non-invasive treatment. This satisfies the relevant factors discussed in Rose and Diab.

94.	The applicant has been using hearing aids, but his statement is silent as to the benefits that he has achieved with their use. All that we know is that the first pair of hearing aids were too loud and caused itching in his ears. There is no suggestion that he has ceased using the replacement set. Drs Payten and Howison recorded no history of the applicant’s use of these aids.

95.	Drs Payten, Kertesz and Howison support the need for hearing aids. Dr Payten assessed 7.5% binaural hearing loss, Dr Kertesz assessed 6.2% and Dr Howison assessed 5.9%. 
Dr Howison indicated hearing aids were only to address the non-work related component, and they are not reasonably necessary for the work related level of hearing loss, even though the assessments are not dissimilar.

96.	The need for hearing aids for workers with lower levels of hearing loss has been considered in a few Commission decisions. Of course, no matter is alike, and each needs to be considered on its own facts.

97.	In Matthews v State Rail Authority of New South Wales, Senior Arbitrator Snell, as he then was, considered a claim for the provision of hearing aids in a worker who was assessed as having only 1.7% binaural hearing loss. 

98.	The Senior Arbitrator noted that Mr Matthews had difficulty understanding speech accompanied by background noise, and dialogue on the television and over the telephone. His wife complained that she had to repeat herself and the television was turned up too loud. This history mirrors the facts in the present matter. 

99.	Although the Approved Medical Assessor (AMS) only found 1.7% binaural hearing loss, he believed that following more than 40 years of noise exposure, there might be subtle damage beyond the numerical assessment of binaural hearing loss to justify the provision of hearing aids. In the circumstances, Mr Matthews was successful in his claim for hearing aids.

100.	In Sekulovski, the worker made a number of small lump sum claims for hearing loss caused by exposure to noise at Bluescope Steel (AIS) Pty Ltd (Bluescope Steel) between 1983 and 1993. The total was only 8.38% binaural hearing loss. There was no dispute that his employer was noisy. He submitted a further claim in 2001, and he was assessed by a AMS as having 1.9% binaural hearing loss.

101.	Mr Sekulovski submitted a claim and the dispute centred on whether the hearing aids were reasonably necessary as a result of his compensable hearing loss. The worker relied upon a report of Dr Tamhane, who assessed 7.1% binaural hearing loss and recommended a trial of bilateral digital hearing aids. Bluescope Steel relied up the binding Medical Assessment Certificate (MAC) and it argued that a 1.9% binaural hearing loss did not justify the need for hearing aids. 

102.	At first instance, Senior Arbitrator McDonald, as she then was, was satisfied that the provision of hearing aids was reasonably necessary as a result of the worker’s injury, even though the AMS had only assessed 1.9% binaural loss. The decision was confirmed on appeal by Deputy President Wood, who agreed that the evidence established that the work-related component of the worker’s hearing loss materially contributed to the need for treatment, consistent with Murphy v Allity Management Services Pty Ltd.

103.	It is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for the treatment. This was confirmed by Deputy President Roche in Murphy, where he stated:

“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

104.	In this matter, Dr Kertesz assessed 14.5% binaural hearing loss that included a noise induced component of 6.2%. According to the applicant, Dr Kertesz recommended the use of hearing aids, but this is not apparent from his reports. The audiologist suggested that these should be provided though WorkCover when she saw the applicant in May 2020, so I see no reason to doubt the applicant’s evidence regarding his discussions with Dr Kertesz.

105.	Dr Payten assessed 18.6% binaural hearing loss that included a noise induced component of 7.5%, and he considered that the occupational hearing loss was stuffiness to warrant the use of hearing aids. The doctor explained:

“His audiogram shows that the hearing in the right ear is worse than the left ear; however, there is a slight conductive component to the right hearing loss consistent with otosclerosis. The worse hearing in the right ear as compared to the left is due to some factor other than noise trauma and is probably due to both stapedial and cochlear otosclerosis. 
In calculating the binaural hearing loss due to noise trauma, I have used the frequencies 1.5, 2.0, 3.0 and 4.0 and I have used the thresholds in the left ear to calculate the occupational hearing loss in the right ear, as both ears were exposed to the same amount of noise. His occupational binaural hearing impairment is 6.6%, 12% having been deducted on account of the worse hearing in the right ear and also because of the hearing loss found in the left ear at 0.5, and 1.0 kHz.”
106.	Dr Howison provided the highest total assessment of 20.2% binaural hearing loss, and the lowest noise induced hearing loss of 5.9%. He did not believe that hearing aids were necessary to address the noise induced component in both ears, but he did not explain why that was the case.

107.	The assessments of the three ENT specialists are somewhat similar. Drs Kertesz and Payten consider that a little under half of the applicant’s hearing loss can be attributed to work related noise exposure. In contrast, Dr Howison believes that the noise induced loss is around one third of the applicant’s total loss. This might well be a material difference.

108.	Even though the applicant was initially treated for a non-work related condition, there was evidence of industrial deafness in both of his ears in May 2007 when the audiologist performed an audiogram. The need for hearing aids was not raised until May 2020. This was on the background of a history of worsening hearing loss in the absence of any audiological evidence of deterioration.

109.	According to Murphy, the work injury does not have to be the only, or even a substantial, cause of the need for the treatment before the cost of that treatment is recoverable. It is arguable that the non-work related condition is the main reason why the applicant needs a hearing aid in his right ear, but the applicant has been troubled by tinnitus and has industrial deafness in both ears.

110.	When one considers the reports of Dr Payten, the audiologist and the series of reports from Dr Kertesz, there seems little doubt that the applicant’s employment at the respondent materially contributed to the need for the hearing aids that were provided in June 2020, given that they apportioned a little under half of the applicant’s hearing loss to work related noise exposure. In my view, this is consistent with a material contribution.

111.	In the circumstances, I am satisfied that the provision of hearing aids was reasonably necessary as a result of the injury sustained by the applicant during the course of his employment at the respondent on 7 November 2018 (deemed). 

112.	Accordingly the respondent is liable to pay for the cost of the hearing aids in the sum of $5,495 pursuant to s 60 of the 1987 Act.

FINDINGS

113.	The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 7 November 2018 (deemed).

114.	The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of 
s 17(1)(a)(i) of the 1987 Act.

115.	The applicant became aware and gave notice of his injury on or about 17 December 2020.

116.	The applicant gave notice of a claim for compensation on 17 December 2020.

117.	The applicant complied with ss 254(1) and 261(1) of the 1998 Act by reason of s 261(6) of the 1998 Act.

118.	The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury.

119.	The respondent is liable for the cost of hearing aids.

ORDERS

120.	The respondent is to pay the applicant $5,495 for hearing aids on production of accounts and/or receipts pursuant to s 60 of the 1987 Act.