Compensation Court of New South Wales CITATION : Sweeney v Harnischfeger [2001] NSWCC 55 revised - 04/09/2001 Brian L Sweeny PARTIES : v Harnischfeger of Australia Pty Ltd MATTER NUMBER(S) : 39266 of 2000; 39266 of 2000 JUDGMENT OF: Moran J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/04/01 DATE OF JUDGMENT: 04/18/2001 FOR APPLICANT: Mr B Brown of counsel appeared on behalf of the applicant FOR RESPONDENT: Mr M Newton of counsel appeared on behalf of the respondent LEGAL REPRESENTATIVES: JUDGMENT: 1. In this matter the applicant, who is now aged 39, brings proceedings for lump sums under s 66 and s 67 of the Act and for provision of a hearing aid pursuant to s 60. At the commencement of the hearing the parties agreed on the amount payable under s 66 and I have already made an award in the applicant's favour for $10,465 in respect of 16.1 per cent binaural hearing loss deemed to have occurred on 18 November 1999. 2. The applicant gave evidence before me today in relation to the difficulties he has on a daily basis with his diminished hearing both at home, at work - and at leisure in cars, boats and also mingling with his friends at hotels. He noticed his hearing diminishing roughly 10 years ago when it was first drawn to him by his wife and because he had need to have the television turned up loud and also he was not able to hear everything she said and what his boys said from time to time. S 67 is payable for pain and suffering if the amount recovered in respect of the loss of hearing is such to comply with s 67(2) of the Act; namely, that the loss must be more than 10 per cent of the maximum amount payable from time to time. The maximum amount payable is $50,000 but that amount is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses. 3. S67(7) says that pain and suffering means actual pain or distress or anxiety suffered or likely to be suffered by the injured worker whether resulting from the loss concerned or from any necessary treatment. In this case there was no evidence from the applicant of any pain and suffering. He does however give evidence of his distress and anxiety of the daily inconvenience of his diminished hearing. He has had the benefit of hearing aids in the last year or so; firstly, with what are described as analogue-type aids or also referred to as programmable hearing aids and even though one for his right ear has not been functioning and not used for the last three months it was much better for him than no hearing aids at all. Two weeks ago he tried what has been described as top of the line hearing aids and namely digital hearing aids which are self-adjusting and better sound quality diminishing background noise et cetera. It was submitted to me by counsel for the applicant that I should not take into account the benefit of those aids in assessing compensation for pain and suffering because of the provisions of s 68 of the Act and because 68(2) says: For the purpose of determining the extent of a loss or thing, the extent to which the loss or the effect of the loss may be reduced or limited by an external removable aid or appliance shall be disregarded. 4. I am not satisfied that that provision applies to s 67 of the Act which is for lump-sum compensation for pain and suffering. That s (2), in my view, is to provide for an assessment of hearing loss without the benefit of a hearing aid as it does for the assessment of loss of vision without wearing spectacles. There was a mention of intermittent tinnitus in Exhibit G, an audio result test done by Hunter Hearing Services but there was no evidence from the applicant nor did I see any suggestion of it in the medical reports from Dr Finlay-Jones on behalf of the applicant or Dr Carroll on behalf of the respondent. So that there is no evidence of any pain, as I said earlier in this judgment. It is really a matter of the distress or anxiety suffered by the applicant as a result of the loss. 5. It is clear therefore that the amount to be awarded is at the lower end of the scale in proportion to a most extreme case and I find that in proportion to a most extreme case the amount that I should award, bearing in mind the applicant's age - he is only 39, should be 10 per cent of a most extreme case. That entitles the applicant to an award under s 67 in the sum of $5,000. 6. The specialist relied on by the applicant, Dr Carroll, had the benefit of considering Dr Finlay-Jones's report and audiogram and I note also that the medical panel, Exhibit A, held on 13 February this year came to an assessment of binaural hearing loss closer to Dr Carroll's assessment of 14.4 per cent than to Dr Finlay-Jones's assessment of 57.74 per cent. The medical panel found that he had a 16.1 per cent binaural hearing loss due to boilermaker's deafness or deafness of a similar origin. The medical panel also found that he did suffer from a loss of hearing either due to some conditions or conditions other than boilermaker's deafness of uncertain aetiology. 7. The reason I am referring to that is that Dr Carroll got a history from the applicant that two months before February 2000, that is in December 1999, he acquired two hearing aids which he found beneficial and he thought that the noise-induced hearing loss would not make the use of hearing aids reasonably necessary. He thought the need arose from the non-compensible component. Dr Finlay-Jones, on the other hand, has given an opinion that the applicant suffers from boilermaker's deafness. He considered that or he recommended he be fitted with hearing aids and he sent him to Hunter Hearing Services for assessment and it is from that organisation I have assessments of the type of hearing aids recommended and the cost of same. 8. Despite Dr Carroll's opinion I am satisfied that on the whole of the evidence, particularly the applicant's evidence, that hearing aids are reasonably necessary as a result of his injury; namely, loss of hearing due to exposure to noise, and I am satisfied that as a result hearing aids have become necessary. The applicant has had the benefit of trying analogue hearing aids for over 12 months except that in respect of the right hearing aid that has been non-functioning for three months but in more recent times for two weeks he has tried digital hearing aids. He noted the benefits and he said that there is no comparison between the two types of hearing aids. He describes digital as absolutely brilliant. They adjusted the volume et cetera and his final word of them was they were excellent. 9. I am satisfied on the balance of the evidence that the applicant should be entitled to digital hearing aids. The order I make under s 60 is that the applicant be provided with hearing aids of the digital type referred to in Exhibit F; namely, Widex Senso digital hearing aids. I make an award under s 67 in the sum of $5,000. I order the respondent to pay the applicant's costs including a qualifying fee for Dr Finlay-Jones. Mr A T Brown of counsel appeared for the applicant Mr M Newton of counsel appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.