District Court New South Wales Medium Neutral Citation: Reynolds and Rus Mining Services Pty Ltd [2019] NSWDC 516 Hearing dates: 20-21 August 2019 Date of orders: 21 August 2019 Decision date: 21 August 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: See [46] Catchwords: COAL MINERS' WORKERS COMPENSATION. INDUSTRIAL DEAFNESS. Lump sum claim. Law applicable to this claim: WCA 1987, s17 and repealed sections 68A, 69A and 70. Loss of binaural hearing of 23.2%. S. 69A not applicable. Deductable proportion. Plaintiff had worked for many years in noisy employment (panel-beating and coal mining) in New Zealand. Mixed hearing loss. Inadequacy of evidence to ascertain deductible proportion. Statutory deduction pursuant to s 68A(6) applied. Legislation Cited: Workers Compensation Act 1987, Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Brown v Barnard & Brown Pty Ltd (1998) 17 NSWCCR 275, Pereira v Siemens Limited [2015] NSWSC 1133, Rodios v Trefle (1937) 11 WCR (NSW) 285 Texts Cited: Mills Workers Compensation - New South Wales (LexisNexis) Category: Principal judgment Parties: Gary Dennis Reynolds, Rus Mining Services Pty Ltd Representation: Counsel: D. Benson (Plaintiff) S. McMahon (Defendant) Solicitors: Slater & Gordon (Plaintiff) Hicksons Lawyers (Defendant) File Number(s): RJ00137/19 Publication restriction: Nil. Judgment 1. HIS HONOUR: The plaintiff, Mr Gary Dennis Reynolds, is a coal miner. He claims lump sum compensation under s 66 of the Workers Compensation Act 1987 ("WCA 1987") for $19,950.84 for 23.2% binaural loss of hearing. He also claims a consequential lump sum pursuant to s 67 for pain and suffering, anxiety and distress resulting from that hearing loss. He claims the sum of $10,000. 2. The quantum of the claim is hotly contested despite the fact that a medical panel has conclusively established that the plaintiff suffers from a 23.2% binaural hearing loss due to the condition of industrial deafness, or, as it was always once known, boilermaker's deafness or deafness of the like origin. I shall refer to that deafness merely as BMD. 3. The plaintiff was born in New Zealand in 1952. He is currently aged 66 years, and next month will turn 67 years old. He remains a New Zealander. After completing his schooling, he commenced work as an apprentice panel beater. He performed that apprenticeship with West Coast Motor Bodies at Greymouth, New Zealand. He appears to have commenced that apprenticeship in about 1967, probably when he was 15 or 16 years old. The apprenticeship lasted four years. The plaintiff completed it successfully. 4. The plaintiff admitted that during that apprenticeship he was exposed to loud noise from time to time. He used electric tools rather than air tools, but would use a ball peen hammer from time to time. After completing his apprenticeship, he found work at Greymouth Motors, which I understand to be a Ford dealership. He worked for that company for about two years, which he said were between 1971 and 1972. However, exhibit 1, a questionnaire completed by the plaintiff in 2004, indicates that he may have stayed with that company until 1974. In that employment, he used air driven tools; and he agreed that it was noisy employment. 5. The plaintiff then left panel beating. He gave this evidence about panel beating: "Q. Did you do overtime at all? A. No. No, I hated the job. Q. Pardon? A. I hated panel beating. Q. Why did you hate it? A. I just didn't like it. Q. Too noisy? A. Too that, and I just didn't like it. Q. So, it was just too noisy? A. Yes and no. I just didn't like the job." The plaintiff was telling me that he did not like panel beating in general, and that one of the problems with panel beating is that it was noisy employment. However, the plaintiff then joined the coal mining industry in New Zealand, which is undoubtedly and perhaps even more noisy than panel beating. 1. Sometime in the early 1970s he found employment with the Strongman Mine. He worked there, according to his evidence, from 1975 to 1984. He told me that in those days the mining was mostly by hand and that there was a lot of shot firing so that he was exposed to the noise of explosions. Between 1984 and 1988 he worked at the Tiller Mine on the west coast, I take it, of the south island of New Zealand. That was work for eight hours a day for five days per week, which appears to have been the general daily, and general weekly darg during the period that the plaintiff worked in the coal mining industry in New Zealand. 2. Between 1988 and 1996 he was a shareholder in a mine and worked in it as an owner/worker. The mine was called the Kiwi Mine at a place known as Ten Mile Valley, which was "just out of Greymouth". He agreed that that also was noisy employment. He then found work at the Moody Coal Mine in Greymouth and worked there between 1996 and 2001. That, like his earlier mining ventures, was underground. He agreed that this also was noisy employment, but by this time there was the use underground of a continuous miner rather than shot firing. 3. It is unclear on the chronology before me as to what work the plaintiff did between leaving the Moody Creek Coal Mine in 2001 and joining the Terrace Coal Mine in either 2003 or 2004. The Terrace Coal Mine was in the Greymouth area and was controlled by Solid Energy, which has an address at Reefton, which is where the plaintiff himself usually resides when he lives in New Zealand. He agreed that the work at the Terrace Coal Mine was noisy employment, being underground mining work. The plaintiff worked there until either 2011, according to his evidence in chief, or 2010, according to his evidence in cross examination. 4. Whilst working at the Terrace Coal Mine, the plaintiff and all his fellow workers in the pit were required by Solid Energy to have hearing tests. For that purpose, the plaintiff completed a Hearing Loss - Claimant Questionnaire for the Accident Compensation Corporation of New Zealand, and was required to return the form when it was completed to the Dunedin Service Centre in Dunedin. In that questionnaire the plaintiff admitted that he had undergone a hearing test in March 2004 when he joined Solid Energy. He said that he had not previously lodged a "hearing loss claim" with the ACC. The fourth question in the questionnaire was this: "When and how did you first notice a loss of hearing or deterioration in your hearing? If you are not currently working, has your hearing loss deteriorated since you stopped working?" The plaintiff answered that question thus: "More so in the last five or six years." When asked what had caused or contributed to his hearing loss, the plaintiff inserted the matter: "industrial noise". 1. The plaintiff was then sent to see a medical practitioner by the ACC. The medical practitioner was Dr Tom Kuruvilla, who has bachelor's degrees in medicine and surgery and is a fellow of The Royal Australian College of Surgeons. Dr Kuruvilla's letterhead describes his field thus: "Otolaryngology, head and neck surgery." Beneath that specialty appear in smaller case the following types of practice: "Surgery of the Paranasal Sinuses, Rhinoplasty Surgery, Allergy and Paediatric Otolaryngology." There are two documents prepared by Dr Kuruvilla. Both are contained in exhibit 2. Each is dated 29 October 2004. The first is headed, "Audiogram report". The second is headed, "Specialist otolaryngologist report". In the audiogram report, Dr Kuruvilla stated that the plaintiff had a binaural percentage hearing loss of 21.3% with no correction required for ageing. 1. I do not know why no correction was made for ageing, but it well may be that under the practice in New Zealand the plaintiff, who was then aged 52, did not have any deduction for presbycusis. Under the applicable law in New South Wales, there should have been a reduction of a half a percent of hearing for each year after 50, so that the total hearing loss ought to have been reduced by 1% to 20.3% after the deduction for presbycusis. 2. In the specialist otolaryngologist report, Dr Kuruvilla recorded this: "He has been aware of hearing loss developing in the late 1970s and this has progressed as he has continued working. It is mainly in the last ten years that he has really begun to struggle. He finds situations where there is background noise difficult; and even on the telephone, certain accents are difficult to understand." Under the heading "Occupational noise exposure" Dr Kuruvilla recorded the plaintiff had begun to wear hearing protection, as that was now standard procedure and had been over the last five years. The twelfth question asked of the doctor, as recorded in the specialist otolaryngologist report, was on the basis of the audiogram findings: what was the nature of the hearing loss? Dr Kuruvilla stated: "He has a fairly symmetrical high frequency sensory neural hearing loss." He again certified a hearing loss of 21.3% due to occupational noise exposure within New Zealand. 1. It is clear from what the plaintiff said that he did not actually make a claim for compensation, albeit that the questionnaire that he completed suggests that he did. He was merely provided, after the examination by Dr Kuruvilla, with hearing aids by the ACC. 2. Annexed to the plaintiff's claim for workers compensation made in this State, the plaintiff provided a copy of a letter to him from the ACC in Dunedin, bearing date 23 November 2004. However, I might be misreading the date, as the photocopying is far from perfect. However, it appears that the letter was sent in 2004 to the plaintiff, following upon the examination by Dr Kuruvilla. The letter commences thus: "We are pleased to confirm that your application for cover, submitted through your treatment provider, has been accepted. You now have cover for Occupational Hearing Loss under the Injury Prevention, Rehabilitation and Compensation Act 2001. The report from the specialist shows that your total hearing loss is 21.3%, which can be broken down as follows: Diagnosis/cause of hearing Percentage Covered by ACC loss Noise-induced hearing loss 18.3% Yes caused by work Low-frequency loss 3.0% No Total hearing loss 21.3% You now have cover for 18.3% hearing loss that ACC has determined is caused by exposure to noise in your workplace. ACC does not cover hearing loss caused by the ageing process, non work noise, hereditary, or medical conditions. The table above summarises the percentage of hearing loss that ACC has accepted cover for, as well as the additional loss that the ACC cannot cover." The letter goes on to tell the plaintiff how to obtain the hearing aids which the ACC was offering to him. The plaintiff took up the offer and obtained the hearing aids. 1. After 2004 the plaintiff worked on with Solid Energy at the Terrace Coal Mine. He ceased working there in either 2010 or 2011. The plaintiff then had either 12 or 18 months off work. It was after that time that he came to New South Wales. 2. I should indicate that during cross examination, the plaintiff was unable to accede to the proposition that he told Dr Kuruvilla that he had become aware of hearing loss developing in the late 1970s. He could not remember that. When it was put to him that that was recorded by the doctor, the plaintiff said he would agree with that if the doctor recorded it. But of course, doctors often mis record things and a matter such as 1970s could easily be a typographical error for 1980s or 1990s. At p 19 of the transcript, the plaintiff said in answer to an earlier question: "I just can't remember having a bad hearing really hearing loss in the 70s. That's all. I just can't understand there. The 90s maybe, yeah, but." The plaintiff went on to tell Mr McMahon, who was cross examining him, that he had been "struggling" with his hearing problem for ten years prior to seeing Dr Kuruvilla in 2004. He said that that was when his hearing loss had become noticeable. The final question and answer on this issue was this: "Q. ...So, having problems that you could really identify from 1994 at the absolute latest? A. Near, well, that would yeah." 1. On the question of hearing aids, the plaintiff told me that the hearing aids provided to him in 2004 he retained until 2015, but they "got out of date" and that they "weren't worth using". In 2015 the plaintiff had a fall into a garage pit, when he fractured his femur. When he fell, the hearing aids fell out of his ears. He was able to find one of the hearing aids after the fall, but that one had been "stood on"; and the plaintiff managed to get new hearing aids by making a claim on the insurer of his home contents policy. Apparently, those hearing aids were much more effective than the hearings aids of 2004. 2. The plaintiff came to New South Wales in 2011. He found work in the Whitehaven Mine at Narrabri. That is an underground coal mine. He did not find work with the collier, but with a contractor. The plaintiff still works at the Whitehaven Mine, but there have been changes of contractor and the plaintiff has worked now for three different contractors. He first worked with UGM Engineers Pty Ltd between 17 October 2011 and 24 September 2012. The plaintiff had a second period of employment with UGM Engineers Pty Ltd between 16 November 2012 and 17 February 2013. The next contractor for whom he worked was RUS Mining Services Pty Ltd, for whom he first worked on 1 March 2013 and worked until 4 December 2017. Subsequently, the plaintiff has worked at the Whitehaven Mine for another contractor, Banksia Coal. 3. The plaintiff made a claim for lump sum compensation for BMD on 11 October 2017. The claim is exhibit B. It provides a claim number: D553241, which indicates there must have been some claim made prior to the document to which I am now referring. However, it does state that the claim was made on RUS Mining Services Pty Ltd. The claim was received by Coal Mines Insurance at its Singleton office on 16 November 2017. There is no dispute that the plaintiff made his claim for BMD benefits on the current defendant on or about 11 October 2017. 4. There is no dispute that the nature of the plaintiff's work with the defendant at the Whitehaven Underground Coal Mine is work which carries the risk of contracting BMD. That is, the fact that the defendant is a noisy employer is not in dispute. That is clear, not from the pleadings, but from what is recorded at the top of p 8 of the transcript; a concession made by learned counsel for the defendant. 5. Following upon that claim, the plaintiff applied for a medical panel certificate. The Medical Panel certificate is dated 15 October 2018; it is exhibit A. The certificate is in this form: "In accordance with the reference to a Medical Panel/Medical Referee under s 122(2) of the Act, the Panel/Referee on 11 October 2018 certifies as follows 1. Has the worker total or partial loss of hearing of either ear, or both ears, due to boilermaker's deafness or any deafness of a similar origin? Yes, partial and binaural. 2. If so, what percentage diminution of hearing loss does such hearing loss constitute (1) Without making any deduction there from in respect of presbycusis? Left ear, 29%. Right ear, 27%. (2) After deduction, in the case of partial deafness of an ear, of an allowance under s 70 in respect of presbycusis of one half decibel for each complete ear of the worker's age in excess of 50 years, the worker having been born on 2/9/52. Left ear, 25%. Right ear, 23%. Binaural 23.2%. 3. Does the worker suffer from any loss of hearing of either ear due to some condition or conditions other than the condition known as boilermaker's deafness or any deafness of the like origin? Yes. (1) What is the nature of that condition or conditions? The condition is of uncertain aetiology. (2) What percentage diminution of hearing of each ear is constituted by such condition or conditions? Left ear, 27%. Right ear, 18%. [On the same level as the 'right ear', on the right hand side] After presbycusis." The s 122(2) referred to in the commencement of that certificate is s 122 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM 1998). That provision still refers to the "Compensation Court". That must be construed as a reference to this Court. Under subs (6) the certificate of the Medical Panel is conclusive evidence as to the matters certified, with a number of exceptions that are not relevant. Accordingly, what has been certified by the Medical Panel is conclusive evidence as to the matters certified. 1. There is one factual matter that I ought to have recorded, and it is this. Before commencing work with the current defendant, the plaintiff underwent a Coal Services Health Pre-placement Health Assessment. There are two documents relevant to that. The first is exhibit 4, a "Health screen summary checklist"; and beneath that, "Coal pre placement health assessment". That document bears the date, 22 February 2013. But it may not have been completed until 1 March 2013. The date at the top of the document may represent the time that it was given to the plaintiff by somebody at RUS Mining. The document has been signed at the bottom by Ms Emma Jones, who appears to be an audiographer and carried out the audiometry which is annexed to the pre placement health assessment report dated 1 March 2013, which is exhibit 3. It is clear from the final page of exhibit 3 that Ms Jones signed the audiogram on 1 March 2013, when it was conducted. The audiogram certifies a 35.2% binaural hearing loss after correction for age. At the time the audiogram was carried out, the plaintiff was 60 years of age; so that there should have been a 5% deduction for presbycusis, so that the total hearing loss prior to the deduction for presbycusis was 40.2%. 2. The plaintiff is quite deaf. The extent of his deafness, I have reduced to a table, which I shall number Table 1: TABLE 1 Plaintiff's level of deafness (Medical Panel Certificate 15 October 2018) Left ear Right ear Industrial Deafness 29% 27% Other Deafness 27% 18% Presbycusis (not deducted – see par 2(1) of Certificate) Total Deafness 56% 45% Conversion to binaural deafness [(4 x 45%) + 56%] ÷ 5 = 47.2% That level of deafness is consistent with the plaintiff's presentation in Court. The plaintiff's presentation in Court can be described as a very civilly conducted "shouting match". The affirmation was administered to the plaintiff by the Court officer: it was a lady who stood next to the plaintiff. The plaintiff had grave difficulty in hearing what the Court officer said to him as she administered the affirmation. Thereafter, it was necessary for counsel and myself to speak extremely loudly in order that the plaintiff could hear what he was being asked. 1. One of the "joys" of sitting in the Coal Miners' Workers Compensation list is, as I have previously pointed out, trying to find out the applicable law. For that reason, I have made a table, which I shall number table 2; and I shall set it out below. The first column records the provisions in the WCA 1987 Sch 6 which apply to coal miners, and the second column records the Acts of Parliament which are not applicable to those who work "in or about a [coal] mine". It is by looking at the time of the commencement of a provision and when the provision may or may not have been repealed, or by looking at when a provision commenced and which Act inserted it, that one can try to ascertain what is the applicable law. TABLE 2 Acts not applicable to coal miners Provision in Schedule 6 Act not applicable Pt 18 clause 3 Act 61 of 2001* Pt 18 clause 3 Act 94 of 2001* Pt 19G clause 10 Act 101 of 2010 Pt 19H clause 15 Act 18 of 2015 Pt 19L clause 5 Act 62 of 2015 Schedules 1-3 * means "with exceptions" 1. The applicable law is s 17 of the WCA 1987, which is still in force. There are three other applicable provisions, all of which have been repealed. The first is s 70, which cannot be conveniently located. It is this: 70 Loss of hearing due to age(cf former s 16 (5B)) (1) In ascertaining, for the purposes of this Division, the percentage of the diminution of hearing in respect of boilermaker's deafness, or any deafness of a similar origin, of a worker who is over the prescribed age, it shall be conclusively presumed that the worker's loss of hearing is, to the extent of the prescribed number of decibels for each complete year of the worker's age in excess of the prescribed age, to be attributed to presbycusis. (2) For the purposes of this section: (a) the prescribed age is 50 years or, where some other age is prescribed by the regulations, the age so prescribed, and (b) the prescribed number of decibels is one-half or, where some other number is prescribed by the regulations, the number so prescribed. (3) The regulations may prescribe different numbers of decibels in respect of different methods of ascertaining the extent of diminution of hearing, and any number so prescribed may be or include a fraction. (4) Nothing in this section applies in a case of total loss of hearing of either ear. The other provisions are s 68A, the text of which can be conveniently found in Mills Workers Compensation - New South Wales (LexisNexis) [WCA 68A.5] and, according to the defendant, s 69A, which can be conveniently found in Mills [WCA 69A.1A]. 1. Had the plaintiff worked throughout his working life in New South Wales, there could be no argument that the whole of the BMD certified by the Medical Panel could be recovered by the plaintiff from the current defendant. However, s 68A has to be applied. I wrote at some length about s 68A in Brown v Barnard & Brown Pty Ltd (1998) 17 NSWCCR 275. In that judgment, I set out the history of the provision and the principles behind its interpretation. At [51] of my reasons I set out the original s 68A; and then at [54] I set out the then current provisions of s 68A, which are the relevant provisions now applicable. WIM 1998 makes a similar provision in s 323. Section 323 of that Act is this: 323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) (Repealed) That provision came to the attention of Garling J in Pereira v Siemens Limited [2015] NSWSC 1133. Pereira was claiming lump sum compensation for 38.6% binaural hearing loss, which was alleged to represent 19% whole person payment [WPI]. Pereira relied on a report of Dr Joseph Scoppa dated 28 February 2013. At [10] of his judgment, Garling J recorded the history obtained by Dr Scoppa. In essence, before coming to Australia, Pereira had lived in Pakistan, where he worked in heavy industry for 18 years as a mechanical fitter and production engineer and was exposed to noise from metalwork, foundry noise, blacksmith noise and hammering and grinding. During that work, he used ear protection intermittently. After coming to Australia, Pereira worked for Siemens Australia Limited for 32 years as a production planner. 1. At [56] his Honour set out s 323 of WIM 1998. His Honour went on to say this: "[91] The actual context for the consideration of these principles and whether the appeal panel's decision is affected by error can shortly be stated. Industrial deafness is a sensorineural loss of hearing. It typically causes an increased hearing loss from low to high tones with relative spearing of the low tones in comparison to high tones. [92] Industrial deafness (or boilermaker's deafness, as it was once called) is attributed to exposure to noise above an identified level and over an extended period. Thus, it is said that the deafness results from, or is caused by, a gradual process. It is not a pre-existing condition or abnormality as those terms are used. [93] Section 17 states that the loss of hearing, if caused by a gradual process, will be deemed for the purposes of the 1987 Act to have happened at an identified time." At [97] his Honour said this: "First, an underlying assumption has been made that the deeming provisions of s 17 of the 1987 Act apply with respect to a loss of hearing which may have occurred in employment outside New South Wales, which employment is not subject to the provisions of the 1987 Act." 1. As I pointed out in Brown v Barnard & Brown, s 68A applies to all losses defined in s 65(1) of the WCA 1987 and mentioned in the Table within the meaning of s 65(2) of the Act. Section 68A swept away the application of the rule in Rodios v Trefle (1937) 11 WCR (NSW) 285 retrospectively to 30 June 1987 in relation to all Table losses. I also pointed out that a reference to "previous injury" in s 68A(1) is reference to injury within the meaning of s 4 of the WCA 1987 and does not include any "prior non-compensable injury". There is no reason for s 68A not to apply to BMD. Indeed, the decision of Garling J specifically applies the current equivalent provisions of the WIM 1998 to BMD. In Brown v Barnard & Brown, I did not state that there was any exception to the general applicability of s 68A to any item in the table. It is true, however, that Rodios v Trefle never applied to BMD, as s 17 or its earlier recensions refer to both a loss of hearing and a further loss of hearing, so that the use of that terminology prevented the application of the rule in Rodios v Trefle. 2. Accordingly, there must be, on the defendant's argument, a deduction for the extent of the hearing loss incurred by the plaintiff as the result of his work in New Zealand. It is not a loss that is compensable under the New South Wales Act, again, a point made by Garling J in the judgment that I have referred to and quoted. 3. The question becomes: what ought be the deductible proportion? The defendant says that the plaintiff now has a certified 23.2% binaural hearing loss. Dr Kuruvilla certified a 21.3% binaural hearing loss due to BMD, and that adjusting that pursuant to s 70 to account for presbycusis, it should be seen as being 20.3%. And the difference between the two assessments is 2.9%, and that ought be the extent of the compensation which the plaintiff can recover. 4. The problem here is that the Medical Panel found a mixed hearing loss. It found a hearing loss in each ear due to BMD, a hearing loss in each ear due to presbycusis, and a hearing in each ear due to a condition "of uncertain aetiology". Dr Kuruvilla did not find any deafness due to a condition of "uncertain aetiology". However, it appears that the ACC did not accept the formulation of Dr Kuruvilla because it reduced Dr Kuruvilla's certified hearing loss by 3% because of "low frequency loss"; that is, a loss not due to BMD. I do not know the basis on which the ACC made the deduction; but, as has been pointed out by Garling J, and as this Court is extremely well aware, BMD does not affect generally a low frequency hearing. In other words, the formulation of the ACC indicates that as far as it was concerned, by whatever methodology it used, there was a mixed hearing loss despite the certification of Dr Kuruvilla to the contrary. 5. Before it became necessary to have the loss of hearing conclusively determined by a Medical Panel, both as to quantum and as to its nature, litigation concerning BMD was quite common. Generally, there would be different opinions as to the nature of the loss as well as to its extent. It was often determined that the best way of dealing with the matter was to consult the audiograms relied on by the various practitioners to ascertain whether they were consistent with the typical audiogram for BMD. An audiogram typical for BMD shows extremely little, if any, loss in the low frequencies; but once one gets into the relatively high frequencies, say, commencing at 2 kH it rapidly drops down. It is the inverse of an exponential curve. 6. The audiogram performed by Dr Kuruvilla is not typical. As far as the left ear is concerned, it shows a loss of hearing at 500 H, a lesser hearing loss at 1 kH, an even smaller loss at 1.5 kH but then a rapidly descending loss to 4 kH; but then a recovery between 4 kH and 8 kH. That is on the left hand side. The right hand side is quite similar. 7. The only other audiogram which I have is that performed by Ms Emma Jones on 1 March 2013. Ms Jones' audiograms are quite different to those performed by Dr Kuruvilla, but again, do not show a typical hearing loss curve. For example, on the left hand side she shows a hearing loss at 500 H, with increasing hearing loss at 1 kH but then a lesser loss at 1.5 kH but then a rapidly descending loss between 1.5 kH and 4 kH but then a moderate improvement to 8 kH, but not as great as the recovery shown by Dr Kuruvilla's audiogram. On the right hand side Ms Jones' audiogram shows a different pattern to that of Dr Kuruvilla. Dr Kuruvilla's shows a hearing loss commencing at 500 H, as does Ms Jones. But Dr Kuruvilla starts the loss at 25 H, whereas Ms Jones starts it at 35 H. The loss is then fairly level, but drops away between 1.5 kH to 2 kH, then is the same between 2 kH and 3 kH then drops away between 3 kH and 4 kH but then recovers slightly between 4 kH and 8 kH back to the same level as it was at 3 kH, which is quite different to Dr Kuruvilla's reversion in the final section of his audiogram, where at 800 kH the graph returns to the same level as almost the 200 kH level. In other words, the two sets of audiograms are different, and both appear to me to be atypical. 8. I invited the parties to put before me the audiogram conducted by the Medical Panel, but neither party chose to do so, despite the fact that it was present in Court. Both what the ACC says about Dr Kuruvilla's audiogram and the audiogram itself indicate to me that there was a mixed hearing loss at the time that Dr Kuruvilla conducted his audiogram. In other words, if the mixed hearing loss had been properly identified back in 2004, the extent of the BMD might be much lower than that certified by Dr Kuruvilla. The ACC's methodology is unknown to me, and appears to have merely knocked out lower level assessments. There is also a problem with higher level assessments, as they should not improve with the increasing tone of the noise. 9. The other problem with the methodology advocated by the defendant is that I am asked to accept that between 2004 and 2018, a period of 14 years, there was only a loss of hearing of 2.9%, despite the fact that in that 14 year period, it would appear that the plaintiff worked in noisy conditions in underground coal mines for at least 12 years. 10. That brings in one of the matters that was considered by Garling J in Pereira, to which I have referred. In that case, both the Approved Medical Specialist and the Appeal Panel had applied a straight line test, applicable to the whole of the plaintiff's working life, both in Pakistan and in Australia. 11. The inner ear contains hair follicles. The deafness is caused by the hair follicles being knocked down or flattened out. Exposure to loud noise could cause the hair follicles to flatten out. However, they have some resilience and can "bounce back". They have an elastic nature. That can be best observed with this example. A young person who does not work in noisy conditions might go to a "rock concert" or "music festival" or a discotheque, if such things still exist, where one is exposed to very loud music. When one leaves the venue or the event, one can notice a decreased level of hearing and perhaps even tinnitus. However, a young person can recover from that exposure to loud noise if there be no further exposure. It is often said that people regain their hearing within a matter of days or weeks. That indicates that the initial elasticity of the hair follicles has not been completely destroyed. The hair follicles "bounce back". It is only with repeated insults to the hair follicles continuing knocking down that they lose their elastic property and remain down, leading to permanent deafness. In other words, to use other terminology, there must be some prodromal exposure to noise, which ultimately results in hearing loss; but if one is removed from the noise source during the prodromal period, the hearing might recover. In other words, the hearing loss should not be seen to be linear. 12. Furthermore, considerations of the same type indicate that with greater age, there should be a greater loss of hearing because the follicles have been exposed for a longer time to noise and are therefore more likely to lose their elasticity. That is, as one gets older, one gets more deaf; and for that very reason, there is a deduction for presbycusis because most people in their normal life are exposed to some level of noise which is above the injurious level. This is so universal that we apply presbycusis. However, the fact remains that those who are older and have been affected by industrial noise for a longer period theoretically ought have increasing levels of deafness, and this Court commonly encounters it. 13. In these premises, the methodology urged upon me by the defendant is, in my view, unacceptable. If expert evidence could have been called from an otorhinolaryngologist, it could not interfere with the conclusive nature of the Medical Panel certificate, but could address the issue of the deductible proportion. Equally, the defendant could have provided to the Medical Panel the documentary evidence from New Zealand that is currently before me, as well as the audiogram performed by Ms Jones on 1 March 2013, and, for example, the history of the plaintiff's noise exposure contained in exhibit 1. 14. At the time that the plaintiff made his claim upon the defendant, he annexed the letter from the ACC of 23 November 2004. S evidence could have been provided to the Medical Panel, which might have explained it; or to a qualified otorhinolaryngologist who, accepting what the Medical Panel certified, could provide a better view of what the deductible proportion ought be. If there were a difficulty in getting that material before the Medical Panel, the Medical Panel could have been asked to delay its determination; and an application could have been made to the Court to stay the Medical Panel examination until after the documentation had been sought from New Zealand. 15. Equally, employers in the coal mining industry in New South Wales usually have pre-employment medical checks. A person such as Mr Reynolds, who was obviously a truthful man, would have told the employer about his early experience of deafness, and the employer, conducting a pre-employment medical, could have obtained the documentation from an overseas or interstate employer or at least obtained authorities from the worker so that the employer could obtain the documentation from interstate or overseas. In other words, there are mechanisms available to a person such as the current defendant to prove with some precision what the deductible proportion might be. 16. Accordingly, I must consider the provisions of s 68A(6), which is in the following terms: "If there is a deductible proportion for a loss, but the extent of the deductible proportion (or part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding litigation) that the deductible proportion for the loss (or the relevant part of it) is 10% of the loss, unless this assumption is at odds with the available evidence." Whilst subs (6) contains the provision "for the purpose of avoiding litigation", it is mainly used in litigation, and perhaps it would have been better expressed: "as for the purpose of avoiding litigation or further litigation". Again, I have spoken of the need for expert evidence in a case such as this, where there is a mixed hearing loss; but there is none before me. It is impossible for me to know what the deductible proportion might be, and therefore, I shall apply the provisions of subs (6) of s 68A and reduce the loss by 10%. If I reduce 23.2% binaural hearing loss by 10%, I come to 20.88%; and the monetary sum, I am told, is $17,955.76. 1. Before I go further, I should recite the defendant's argument under s 69A. As I have already indicated, the defendant was arguing that the hearing loss was only 2.9%, and therefore, it was submitted, it would not be payable under s 69A. However, that represents a misreading of the provision. Section 69A(1) is in the following terms: "In assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing (the present loss) due to boilermaker's deafness, regard must not be had to any hearing loss due to boilermaker's deafness unless the worker's total hearing loss due to boilermaker's deafness is at least 6%." In the current matter, the plaintiff's hearing loss due to boilermaker's deafness is that certified by the Medical Panel; namely, 23.2%. The 2.9% argued by the defendant must therefore be recoverable, and that can be seen in the provisions of subs (4) para (c). Subsection (4) is in the following terms: "An example of the operation of this section is as follows (assume that all hearing losses mentioned are due to boilermaker's deafness, and that no other injury is involved): (a) A worker suffers a hearing loss of 4% (the first hearing loss that the worker has suffered). No permanent impairment compensation is payable in respect of the loss because it is less than 6% and cannot be taken into account to assess a degree of permanent impairment, although notice of injury can be given or a claim can be made for the hearing loss. (b) The worker suffers a further hearing loss of 4%, bring the total loss to 8%. The total loss has now passed the 6% threshold and compensation is payable on the basis of the full 8%. Compensation in respect of the initial 4% hearing loss will be payable by the early employer if the worker made a claim or gave notice of injury for that initial hearing loss. (c) The worker suffers a further hearing loss of 5%. The worker is entitled in the usual way to compensation in respect of the 5% further loss of hearing because the 6% threshold has already been passed (the total loss is now 13%)." 1. The amount of compensation payable to the plaintiff for his BMD entitles him to a lump sum under s 67 for pain, and suffering anxiety and distress resulting from his loss. As I have mentioned, he claims the sum of $10,000. 15% of a most extreme case is $9,930. The defendant submitted that this was only 10% of a most extreme case; that the appropriate lump sum was $6,620. In my view, the matter is in between the last two figures that I have mentioned. It appears to me that the plaintiff's experience of anxiety and distress resulting from his hearing loss stands in proportion to the most extreme case in the ratio of 1:8. That entitles the plaintiff to a lump sum under s 67 of $8,275. 2. For those reasons, I make an award for the plaintiff for $17,955.76 pursuant to s 66 for 20.88% binaural loss of hearing (23.2% before s 68A). I make an award for the applicant for $6,620 pursuant to s 67. I order the defendant to pay the plaintiff's costs. ********** Amendments 23 September 2019 - Technical error in uploading of tables - now resolved 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. Decision last updated: 23 September 2019