Lee v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2011] NZACC |2 2 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN COLIN LEE (ACR 476/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 18 February 2011 APPEARANCES Mr C Lee in person. Ms F Becroft, Counsel for the Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The appellant lodged an appeal with this Court from a Review Decision dated 15 March 2010. That review encompassed three separate applications for review of three primary decisions of the respondent, and the Reviewer made decisions in respect of each primary decision, and it is in respect of two such decisions that the appellant has now appealed to this Court. [2] The first decision of the Reviewer, which is now the subject in this appeal, was his decision that he had no jurisdiction to consider the appellant's application for review in respect of the respondent's primary decision of 28 October 2009, whereby it declined to grant cover to the appellant for claimed work related hearing loss. [3] The second decision of the Reviewer, which is now a subject in this appeal was to confirm the respondent's decision of 10 December 2009, whereby it declined to fund 2 hearing aids for the appellant because the need for same was principally as a consequence of non work-related hearing loss. It is the case that the same decision did advise that the appellant had cover for work-related hearing loss. [4] The relevant background facts may be stated as follows: . On 2 July 2009 the respondent received a claim for cover for work- related hearing loss lodged by the appellant and which hearing loss it was alleged had been caused by his work at Meadowlea Foods Ltd, being employment he had been engaged in from 1994 to 2000. . By letter dated 1 October 2009, the respondent wrote to the appellant as follows: Request for Extension of Time I am considering your claim for cover for Noise Induced Hearing Loss lodged on 2nd July 2009. I require a specialist hearing assessment report from (sic) and ENT to enable me to decide whether your injury can be classified as a "work-related injury caused by a gradual process". Please be aware that sometimes there are length (sic) delays getting a specialist assessment appointment and report completed. ACC must make a decision about claims for gradual process conditions within four months of lodgement - unless you agree to allow us more time (the 4 month timeframe includes a 2-month extension which you were advised of when the claimant questionnaire was sent to you). If you agree to an extension of time from 31" October 2009 to 31" December 2009, I will be able to reach a decision that takes account of the additional information I am seeking. If I do not receive your agreement by 26" October 2009, I will issue a decision based on information that is already available. We may not have enough information to enable us to accept your claim. Please fill out the attached form and return it in the reply paid envelope before 26" October 2009. By letter dated 28 October 2009 the respondent wrote to the appellant stating, inter alia, as follows: We're sorry, we can't approve your claim Thank you for your patience while we assessed your claim for hearing loss. After careful consideration, we're sorry to say your claim has not been approved. Why we can't approve your claim We're unable to approve your claim because we don't have enough information about your hearing loss. This is because you didn't return the time extension form we sent you on 1" October 2009, and we had to make a decision on the limited information we had. However, once we receive the rest of the information we asked for, we'll be happy to reassess your claim. 3 . The appellant lodged an application for review on that decision on or about 30 October 2009. . By letter dated 30 October 2009 the respondent wrote to Dr Ronald Goodey, Otolaryngologist, requesting his assessment of the appellant's claim for cover for work-related hearing loss. . Dr Goodey provided a report to the respondent on 23 November 2009. . By letter dated 24 November 2009, the respondent sought clarification from Dr Goodey in relation to work-related and non-work-related hearing loss. By letter dated 1 December 2009 Dr Goodey provided his advice as to the percentage of occupational noise induced hearing loss. Consequent upon Dr Goodey's reports, the respondent issued a decision on 10 December 2009, that decision covering two matters. The decision firstly advised that the appellant was granted cover for work- related hearing loss, which it advised was 3.7% of a total of 9% hearing loss which had been assessed, and it advised that 5.3% hearing loss was from other causes. The second aspect of its decision was that it declined to fund hearing aids for the appellant on the basis that his need for same was not as a consequence of his work-related injury. The appellant sought a review of that decision and those two decisions were considered by Reviewer, Mr J R Orange, on 9 March 2010. In his decision dated 15 March 2010, the Reviewer determined that he had no jurisdiction to consider the respondent's decision of 28 October 2009, as that decision had been overtaken by the respondent's later decision of 10 December 2009. . In relation to the respondent's decision of 10 December 2009, he identified that the predominant cause of the appellant's assessed hearing loss was due to factors other than occupational noise exposure, and as such he did not qualify for the provision of hearing aids for his covered hearing loss. 4 [5] The basis for the respondent's decision of 10 December 2009 was the advice received from Dr Goodey, principally in his report dated 17 November 2009. For this report, an audiogram had been carried out and it had identified a percentage binaural hearing loss of 9%, and he noted that there were inconsistencies between that audiogram and one which had been taken in June 2009. He further noted that the pattern of hearing loss was unequal, with the right ear having less at low frequency than the left, but more at high frequency than the left. Dr Goodey then stated, inter alia, as follows: Treatment and Management Strategies 1 . His main difficulty is for hearing the high-pitched consonants in speech especially in women's voices. High-frequency sounds have short wavelengths and travel in straight lines. To minimise his disability he needs to be face to face and reasonably close to the person speaking. He should choose environments in which background noise is not excessive. If he upgrades his television then he should use on-screen graphics to turn up the treble so that it is clearer and so that he does not need it quite as loud 2 His audiogram should be repeated in 3 months to ensure the unequalness in hearing between the sides is not increasing. If it is then we can reconsider his options including hearing aids. 3. If the unequalness in hearing between the sides has increased then an MRI could be required 4 Unless the unequalness between the sides has become less in 3 months, he will also need a repeat audiogram in a year. Hearing Aid(s) To be reconsidered if the repat audiogram in 3 months has not shown any increase in unequalness between the sides or has shown a decrease in unequalne Comments 6 1/2 years of occupational noise exposure between 1994 and 2000 and has been aware of some tinnitus and hearing impairment since about that time. However audiograms shows some inconsistencies between the 2 sides and between June and November. These have to be sorted out before the causes of his hearing impairment can be determined and recommendations on the appropriateness of hearing aids can be made. [6] Following receipt of Dr Goodey's report, the respondent sought further advice from him and asked the following question: In your opinion what is the percentage of occupational hearing loss sustained at the time of occupational noise exposure? Dr Goodey responded on 1 December 2009 as follows: 5 Low and middle tone hearing are not affected by noise and in his case impairment has been recorded only on the left side. Clearly it is not due to noise exposure High toned hearing impairment can be caused by noise but in his case the noise exposure has been symmetrical. Other facts must be responsible for the greater impairment shown on the right side compared with the left side. On the present evidence it is possible to argue on his behalf that hearing impairment at 4000 Hz and above in the left ear is due to occupational noise and also indicates the amount of the right ear's hearing loss which may have been acquired from occupational noise exposure. As noise only causes the damage at the time of the exposure any recent deterioration is due to other causes. On the above basis I am able, at the present time, to assess the amount of occupational noise induced hearing loss as 3.7% (though it may actually be less than this). [7] It is the case that subsequent to the Review decision a further audiogram was obtained and referred to Dr Goodey and he reported to the respondent on 23 March advising, inter alia, as follows: It appears that with increasing practice Mr Lee is becoming more accurate at responding to pure tones close to the threshold. There is no longer any asymmetrical low and middle toned hearing impairment shown which does not surprise me. I am pleased to see that there no longer appears to be as much asymmetry in the high toned impairment. A persisting or increasing asymmetry could have required organ imaging. The pattern of high toned hearing impairment is now consistent with noise induced damage though there is still some asymmetry and some involvement in middle frequencies which are not usually affected by noise. I think there is some noise induced hearing impairment and some superimposed progressive impairment. It would require repeat testing in one or more years to check whether his loss is stable and probably due entirely to noise or progressive and therefore independent of previous noise exposure. At present his total percentage binaural hearing loss is 7.2%. There is no age correction required. It would be incredibly rare for this amount of loss to result from less than 7 years of moderate exposure though it is not impossible. Hearing impairment at 3000 Hz and above, and based on the less affected left ear calculates at 5.6%. 1. I would accept an impairment of 5.6% as attributable to occupational noise exposure in New Zealand. 2 I would decline the provision of a hearing aid at the present time (in my opinion his need is a very borderline). 3. I would recommend a repeat audiogram in one or preferably 2 years time. 4. If the audiogram is no worse, then I would suggest you accept the entire oss (7.2%) as being due to occupational noise exposure in New Zealand and then meet the cost of hearing aids (a little reluctantly). [8] The appellant submitted that the respondent had failed to meet the time limit provided for in Section 57 of the Act and make a decision within two months of the 6 claim being lodged, and that therefore by Section 58 the appellant is to be regarded as having a decision in his favour in relation to the cover claimed. [9] The appellant submits that the later decision of 10 December 2009 does not overrule that earlier decision and it is his submission that the consequence of a decision under Section 58 is that the whole of his hearing loss can be attributed to the workplace, and with that as the starting point, his principal object of obtaining hearing aids is thereby established. [10] The appellant submits that the later decision is wrong and should endorse the fact that he is entitled to funding for hearing aids because of the nature and extent of the covered hearing loss and that Dr Goodey's report of 23 March 2010, identifies that the predominant cause of hearing loss is from the workplace. [11] Ms Becroft submitted that the decision of 10 December 2009 overtook the earlier decision of 28 October and on that basis the Reviewer had correctly declined jurisdiction. She submitted that there could be no meaningful outcome to any proceedings in relation to that earlier decision. [12] Counsel further submitted that the respondent's decision of 10 December 2009 was correct, and that there was no evidence of a need for hearing aids in Dr Goodey's opinion. She further submitted that Dr Goodey's further report of 23 March 2010 identified that the question of hearing aids would need to be considered in a year's time after a further assessment, and therefore the respondent's decision of 10 December 2009 should stand until such further assessment. DECISION [13] Dealing firstly with the matters raised by the appellant in respect of the respondent's first decision of 28 October 2009, I find that it must be accepted that the respondent had not followed its statutory obligations as contained in Sections 54 and 57 of the Act. Section 57 requires the respondent to have taken all practical steps within two months of receipt of the claim and to make a decision on the claim or to seek an extension of time. [14] The facts of this matter are that the appellant's claim was received on 2 July 2009 which would mean that the respondent would have been required to make a decision on or before 2 September 2009 or to have sought an extension of time prior to that expiry date. It did not do so, and as the evidence discloses it did not seek an extension of time until its letter to the appellant of 1 October 2009, and with that letter seeming to 7 suggest that it was still within the time limit to seek an extension, which was clearly not the case. [15] On that basis, it must be the case that as of 2 September 2009 the appellant did have cover for the personal injury of work-related hearing loss. However, it is not the case as the appellant asserts, that the amount of that work-related hearing loss was identified, and therefore it is not the case as a matter of law that the appellant's work- related hearing loss for which he would be entitled to cover as from 2 September 2009 was 9%. [16] Whilst the appellant could be said to have an entitlement to cover, the extent of that cover would require further investigation, as indeed it did, as the audiogram identifying that hearing loss was not carried out until 17 November 2009. [17] It is also the case that issues of cover and entitlement are quite separate and the extent of the favourable decision, which is provided for in Section 58, is for cover only, and not for any entitlement, so that there can be no question that any favourable decision regarding hearing aids could be said to arise by reason of the respondent's default in complying with Section 57. [18] Turning now to the respondent's decision of 10 December 2009, it is the case that that decision did acknowledge acceptance of cover for the appellant for work- related hearing loss and it went further and identified the extent of that work-related hearing loss in relation to the total hearing loss which had been identified by the audiogram. [19] To that extent the respondent's decision of 10 December 2009 did overtake the earlier decision of 28 October 2009 and so, at the end of the day, the Reviewer was correct to find that he had no jurisdiction to consider that earlier decision because it had been overtaken by the later decision, and that later decision was the decision of substance, the earlier decision simply being an interim decision pending the receipt of further information from the appellant and/or specialist assessment. [20] Turning now to the real issue which the appellant was seeking, namely that the assessment of his work-related hearing loss entitled him to the provision of hearing aids, that issue must be looked at under the statutory provisions relating to the respondent's obligation to pay or contribute towards the cost of treatment. Clearly the provision of hearing aids for deafness is regarded as a provision of treatment for that deafness. 8 [21] In the case of this appellant it is the current advice of Dr Goodey that the nature and extent of the appellant's hearing loss does not warrant the provision of hearing aids, but he does leave the matter open to be reconsidered in the future should a future audiogram identify that the unequalness of hearing between sides is not increasing. [22] In terms of the statutory provisions, Clause 2 of Schedule 1, advises that the respondent is liable to pay the costs of treatment if the treatment is for the purpose of restoring the claimant's health, and the treatment is necessary and appropriate. At the present time the specialist evidence is that the provision of hearing aids is not necessary or appropriate, but that it may be in the future. [23] In those circumstances, I find that the respondent's decision to decline to fund hearing aids as of the date it did, was the correct decision, but that that decision is subject to review and reconsideration after a repeat audiogram in one or two years' time, that is from December 2009. [24] For the foregoing reasons therefore, I find that the two decisions which were the subject of this appeal, were in fact correct, but as is the case with appeals in this jurisdiction, the Court has considered the whole issue afresh and has come to its own decision that the appellant was not, as of the date of the granting of cover, eligible for the provision of hearing aids as an item of treatment. [25] This appeal is therefore dismissed. DATED this 19 day of April 2011 Chea the M J Beattie District Court Judge