Bryant v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH WELLINGTON REGISTRY AI 52/07 DECISION NO. 98 / 2007 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF of an appeal pursuant to Section 49 of the Act BETWEEN KENNETH MARSHALL BRYANT Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Heard at Christchurch: 14 May 2007 Appearances: - The Appellant on his own behalf Mr H A Evans for ACC Judgment: 23 May 2007 RESERVED DECISION OF JUDGE P F BARBER The Issue [1] Mr Bryant has cover for occupational noise-induced hearing loss affecting his left ear. He also has hearing loss regarding his right ear which is not covered by ACC. [2] The issue is the correctness of ACC's 20 May 2006 decision declining to fund an application for a hearing aid on the basis that Mr Bryant's need for it was not a direct consequence of his covered injury. Background [3] Mr Bryant has cover for industrial hearing loss to his left ear related to his work at a timber mill, freezing works and the Tiwai aluminium smelter. His normal hearing was affected when in 1960, at the age of 13, he fell from a horse damaging his right ear. [4] In 1965 he worked for three years at a timber mill where there was excessive noise. In 1968 he commenced working for twelve years at the freezing works where there was also excessive noise. He continued to work at the freezing works for another five years from 1980, until he worked at the Tiwai Point aluminium smelter in 1985. He spent two years on the pot-line where there was also excessive noise. All this industrial related hearing loss occurred before 1990. Medical Reports Dr S Mossigi-Nygaard - Ear, Nose & Throat Specialist [5] Dr S Mossigi-Nygaard referred to as follows to the 1960 accident when Mr Bryant fell from a horse and this caused him to be totally deaf in the right ear: "Conclusion Anacusis right ear after accident 13 years old. Subjective feeling of increasing hearing loss left ear, fact that has caused loss of a well paid job. He has undoubtedly been exposed to excessive occupational noise. Audiometry results are unreliable, but this does not prove that the patient does not have a noise induced SNHL, but we do not know his real hearing thresholds." Report of Mr Greig - ENT Sepcialist - 11 November 1997 [6] In a letter to Dr Michael Kerr, Mr Greig noted that Mr Bryant liked to dive for crayfish and on 26 October 1997 while scuba diving had some difficulty equalising his air pressures. "He felt air hissing in his left ear and when he surfaced there was some bleeding from the left ear. This would be strongly suggestive of a perforation. Of interest, he told me he had been stone deaf in his right ear since the age of 12 when he fell off a horse. Presumably at that time he suffered from a basal skull fracture and it seems that his hearing loss in the right ear is total and sensori neural in type. . . It seems as though his left ear drum perforation has healed spontaneously. Tuning fork tests in a pure tone adulogram indicate no useful hearing in the right ear and hearing fractionally below the lower limits of normal in the left in the speech frequencies.. . At this stage I think he would probably be best to continue without a hearing aid. I have warned him that scuba diving does impose a small but significant risk to the ears." 7] In early 2006, Mr Bryant approached Mr Greig to request hearing aids. By letter of 22 February 2006, ACC wrote to Mr Bryant and asked him to complete a consent form. Mr Greig's report of 21 March 2006 [8] Mr Greig met with Mr Bryant and prepared a thorough report. It was emphasised to me that, under the heading of "16 The amount of hearing loss that could be due to occupational noise exposure within New Zealand", Mr Greig concluded: "9.4% NAL - previous assessment but probably considerably less (maybe 5% NAL). It is arguable however that in a situation where there is total pre- existing hearing loss in one side, then the hearing handicap resulting form subsequent damage to the only remaining hearing ear would be additive. I believe that Mr S Nygaard's concerns about the reliability of audiometric thresholds obtained in 1990 are well founded and my audiogram taken from Mr Bryant in 1997 indicates a dramatic improvement in hearing thresholds in the left ear to almost normal levels (500 HZ to 2KHz). My audiogram 1997 shows a high tone hearing loss in the left ear particularly at 4, 6 and 8 KHz with a configuration that would be highly suggestive of inner ear damage from previous noise exposure. If credit were given for his losses at 4, 6 and 8 KHz on the 1997 audiogram as being probably due to occupational noise exposure and this loss in the left ear amounts to around 6- 7% whether or not credit is given for the total loss of hearing in the other ear. I would conclude that between 5-10% NAL of this man's hearing loss is occupationally related and noise induced". (emphasis added) [9] That para 16 of Mr Greig's 21 March 2006 report makes more sense when fitted into its following context:- 12 - DESCRIPTION OF AUDIOGRAM FINDINGS: Total loss of right ear with severe relatively flat sensori neural hearing loss left ear, gently sloping form 50dB at 500 Hz to a maximum of 70 dB at 2, 4 and 8 kHz. 13 - PERCENTAGE HEARING LOSS NAL% gross 70.4% (29.3% 1997) Both of these figures give full credit for total loss right ear. Presbyacusis factor 0 Net NAL 70.4% 14 - OPINION ON PATTERN OF HEARING LOSS: This person's audiogram indicates a total hearing loss in the right ear of known aetiology head injury). In the left ear the pattern does not suggest any particular single causation and would appear to be multifactorial. The pattern, although not suggestive of occupational noise induced hearing loss as a predominant feature, is not inconsistent with some pre-existing high tone loss presumably noise induced. 15 - PATTERN NOT CONSISTENT WITH OCCUPATIONAL NOISE INDUCED HEARING LOSS. in the main... 17 - OTHER CONTRIBUTING CAUSES: Anacusis right ear 16% NAL approximately. Idiopathic cochlear degeneration approximately 40% NAL. Small additional contributions to this man's hearing loss on recreational rifle shooting and scuba diving baro trauma also possible... 20 - HEARING AIDS RECOMMENDATION: This man's need for provision of a unilateral hearing aid for the left ear is considerable and undoubted. His previous successful claim on the ACC (following review or Court Appeal?) leaves him with a not unreasonable expectation that the will get further help from the ACC. Insofar as he is already an Invalid Beneficiary, it seems unlikely that he can afford an aid himself. Conversely there can be no doubt that occupationally related noise induced hearing loss at this time contributes only a small part of to this overall hearing loss on the NAL scale, - i.e. 5-10% NAL of 70.4% NAL. An interesting compounding factor however is the pre-existing total hearing loss in the right ear due to an accident at the age of 12 or 13. Even if that injury and the resulting total loss in the right ear do not fall within the scope of the ACC, it would seem to me that any subsequent occupationally related noise induced hearing loss to his only remaining ear (the left), would produce an overall hearing handicap from which the pre-existing right sided hearing loss could not fairly be subtracted. Thus, by ignoring previous misleading low tone hearing losses on this man's 1990 audiogram and utilising at least the high tone thresholds 4,6 and 8kHz from my 1997 audiogram, I would conclude in fact that around 20% NAL of this man's hearing loss fails within the scope of the Act. Whether or not this contribution is sufficient to allow the ACC to provide both cover and entitlements remains to be seen. I would be interested to hear the outcome of this case in due course. (my emphasis) [10] By letter of 20 May 2006, ACC issued a decision letter declining Mr Bryant's request for hearing aid assistance. The Corporation was of the view that the need for hearing aids was not caused by occupational noise exposure. On page 2 of the letter, Mr Cook, the claims manager, noted: "Your hearing did subsequently deteriorate to the point where there is now a loss (calculated on the same basis as detailed above) of some 65.2%. This deterioration has occurred in the absence of any occupational noise exposure. Once exposure to the noise ceases there is no further progression of loss as a result of prior noise exposure (see College guidelines attached for your information). The deterioration is therefore due to causes that are not covered by ACC. In 1997, it was considered that you did not need a hearing aid and you had incurred all of your occupational noise induced hearing loss, now a hearing aid is needed after some 52.6% deterioration that is not covered by ACC." The Review Decision [11] A review hearing took place on 3 November 2006 and a decision was issued on 9 November 2006, by the Review Officer, Vicki Thomson. 12] The Review Officer fully covered the history of this matter and noted that Dr M Greig had on 1 1 November 1997 considered that the appellant would "probably be best to continue without a hearing aid" and had noted that the appellant could trial the fitting of a hearing aid "if further deterioration takes place". Much later, on 20 January 2006 Dr/Mr Greig reported to a ACC that the appellant's hearing loss was "much worse" than in 1997 but was not "in the main" related to occupational noise exposure. It happened that ACC had destroyed the claim lodged by the appellant for industrial hearing loss in 1987 so the Corporation obtained a further hearing loss report from Mr Greig on 21 March 2006. Then, he confirmed that the appellant had total hearing loss in the right ear and "severe relatively flat sensori neural hearing loss" in the left ear and stated that the appellant's hearing loss in the NAL scale was 1997 29.3% and 2006 70.4%. Mr Greig concluded that 5-10% NAL of the appellant's hearing loss related to the covered injury. In the course of her reasoning the Review Officer stated (pg 7 of her decision): "I have carefully considered the 1997 and 2006 reports of Mr Greig. Mr Greig said the audiogram in 1997 showed that Mr Bryant's hearing thresholds in the left ear were at "almost normal levels". Mr Greig did not recommend a hearing aid at that time. Mr Greig's report of 21 March 2006 notes considerable deterioration in Mr Bryant's hearing (from 29.3% in 1997 to 70.4% in 2006). Mr Byrant believes the deterioration is caused by his industrial hearing loss. However, I prefer ACC's submission. While I treat extracts from medical texts with some caution, I accept the evidence that once exposure to noise stops, there is no significant further progression of hearing loss caused by the noise exposure. Unfortunately, Mr Bryant's hearing has deteriorated significantly. In 2006 he does need a hearing aid, but Mr Greig thought only 5-10% of Mr Bryant's hearing loss was occupation-related." [13] She also referred to the case of Penberthy (24/2001). On page 8 of her decision she concluded: "Mr Bryant's circumstances are similar to those of the claimant Penberthy. While he is covered for some noise-induced hearing loss, I have not been persuaded that he needs the hearing aid "as a direct consequence" of his covered injury." [14] Ms Thomson finished on the following very understandable note; "I sympathise with Mr Bryant. I accept that he would benefit from a hearing aid. However, I have not been persuaded that he needs the requirement of the Act for an ACC-funded aid." The 2001 Statute Social Rehabilitation 81 Corporation's liability to provide key aspects of social rehabilitation (1) In this section, key aspect of social rehabilitation means any of the following: (a) aids and appliances: . . . (iii) The Corporation is liable to provide a key aspect of social rehabilitation to a claimant- (a) if the conditions in subsection (4) are met; but . . . (4) The conditions are- (a) a claimant is assessed or reassessed under section 84 as needing the key aspect; and (b) the provision of the key aspect is in accordance with the Corporation's assessment of it under whichever of clauses 13 to 22 of Schedule 1 are relevant; and (c) the Corporation considers that the key aspect-- (i) is required as a direct consequence of the personal injury for which the claimant has cover . ..(emphasis added) [15] Section 81 of the 2001 Act, sets out ACC's obligations to provide social rehabilitation. Part of social rehabilitation, includes the provision of hearing aids. One of the conditions is that the aid must be required "as a direct consequence of personal injury for which the claimant has cover" - Section 81(4)(c)(i) (my emphasis). [16] Section 26 defines personal injury. Section 26(4) provides: Personal injury does not include- (a) personal injury caused wholly or substantially by the ageing process; . .. The Appellant's Submissions [17] Mr Bryant has provided written submissions and has also attached various reports in support of his claim. He said he spent 12 years in the freezing works, which caused him industrial deafness, and he then had a diving accident in 1997. He says this caused his left and right eardrums to rupture. He has attached the following reports: (a) Report of Mr Greig dated 21 March 2006; (b) Hearing Loss - Audiogram Report dated 4 May 2006 from Brian Conaghan; (c) Letter from Mr Greig to Dr Michael Kerr dated 11 November 1997; (d) Report of Dr Glass dated 26 July 2003 [18] The report of Dr Glass was restricted to the issue of looking at Mr Bryant's capacity to work. Analysis [19] Mr Evans submits that the case of Penberthy (24/01) is directly on point in relation to this appeal. I agree. In Penberthy (24/2001), the claimant had a 59.6% hearing loss of which 10% was caused by occupational noise exposure. The specialist said the claimant's 10% hearing loss would not be of sufficient severity to warrant the fitting of a hearing aid. The Court held that the appellant's need for the hearing aid was not a direct result of a covered injury and therefore the appeal was allowed in ACC's favour. [20] Penberthy was an appeal by the Corporation, which was allowed. It involved a 1991 claim for occupational hearing loss. There was evidence of presbycusis (degeneration of hearing with advancing age) and the evidence of the Otolaryngologist, Mr Blake, was very similar to that of Mr Greig in the present case. In Penberthy, Mr Blake concluded that: "The contribution from any noise factor is minor and I continue to be of the view is no more than a maximum of 10%. The Corporation is faced with a difficult decision in assessing Mr Penberthy. It cannot be denied that Mr Penberthy's hearing might have been damaged to a minor extent by noise exposure but, equally so, it would be absurd to argue that his present disability is attributable in major part to the effects of noise damage." [21] Judge Middleton in the Penberthy decision concluded: "(21) I agree with the appellant's submission that the reviewer misapplied the provisions of Clause 43 because he failed to take into account that the provisions of Clause 43 were governed by the requirements of clause 37. It was therefore necessary that the requirement to provide the hearing was "as a direct result of personal injury". (my emphasis) (22) The personal injury for which his respondent had cover was the onset of industrial deafness.. . (24) I agree with the appellant's submission that on the basis of Mr Blake's opinion, which had been consistent throughout was that only 10% of the hearing loss could be as a result of industrial deafness and that a degree of hearing loss of 10% would not be a sufficient severity to warrant the fitting of a hearing aid." [22] It is significant that in the present appeal, while Mr Bryant has cover for industrial hearing loss regarding his left ear, all of his work-noise exposure occurred before 1990. [23] On 11 November 1997, Mr Greig was of the view that Mr Bryant would probably be best to continue without a hearing aid. [24] I note that the Corporation accepted that by 2006 Mr Bryant's hearing loss was much worse than in 1997. However, the Corporation is bound to follow Mr Greig's advice that Mr Bryant's hearing loss was not "in the main" related to occupational noise exposure. Unfortunately for Mr Bryant, Mr Greig remains of the view that only 5 to 10% NAL of Mr Bryant's hearing loss was occupationally related. Mr Greig put it that: "...there can be no doubt that occupationally related noise induced hearing loss at this time contributes only a small part of to his overall hearing loss on the NAL scale, - i.e. 5-10% NAL of 70.4% NAL." [25] The requirements of s 81 of the 2001 Act provide that in order for the Corporation to provide a hearing aid, it must be required as "a direct consequence of the personal injury for which the claimant is covered" s 81(4)(c)(i). That mandatory requirement has not been met in the present case. There is no convincing evidence, on the balance of probabilities, that Mr Bryant's hearing deterioration in his left ear over 1997 to 2006 is in any way linked to the personal injury of hearing loss to that ear which had built up by 1990 and is covered as industrial deafness. From then there is no evidence of exposure to undue noise and certainly not to work-related noise. With regard to his left ear, between 1997 and 2006, he was not exposed to any further occupation related noise. The medical information that the Corporation has, and of the relevant American Medical Association Guidelines, confirm that, once exposure to noise stops, there is no significant further progression of hearing loss caused by the noise exposure. 26] Mr Bryant does not have cover for the total hearing loss in his right ear. 27] Unfortunately for Mr Bryant, while it is accepted by all concerned that he would benefit from a hearing aid, there is no jurisdictional basis for the Corporation pursuant to the 2001 Act, to be able to fund that request. If his industrial deafness is a small part of his current hearing loss, then the need for a hearing aid is not required as "a direct consequence" of the industrial deafness and is precluded from provision of social rehabilitation by s 8(4)(c)(i) set out above. A hearing aid is not required as a "direct consequence" of his covered injury and on that basis, the appeal must be dismissed. [28] I appreciated hearing from Mr Bryant who read and commented on his hand- written submissions of 5 February 2007. It was pleasing that he could hear and understand all I had to say, but I noted that he had to concentrate closely to be able to hear me. He finished his submissions as follows: "ACC keep saying that my hearing loss is caused through age now [his emphasis] and yet they paid me $2000.00 in 1990 for industrial deafness or loss of hearing from freezing works. I was also told that I could get a hearing aid at any time in the future with ACC being responsible for any cost. Being on the invalid benefit makes it impossible for me to afford the cost. All I want is a hearing aid which I'm entitled to under the ACC Act so I can get back to the workforce off the invalid benefit and have a better social life without shutting myself away from people because I can't hear what they are talking to me about." [29] Mr Bryant also emphasised to me that he only wanted one hearing aid for his left ear and that he genuinely believed that ACC should take responsibility for that. Actually, the aspect of deterioration of the hearing in his left ear since 1997 through age was not directly addressed before me but that is a likelihood and could not be regarded as personal injury due to s 26(4)(a) set out above. However, I have not placed any reliance on s 26(4)(a). [30] I can only agree with Mr Evans that this is a frustrating situation in that, in terms of human kindness, ACC would like to assist Mr Bryant but must follow proper process and base its decision on the medical reports provided to it. It simply cannot overcome Mr Greig's opinion that only 5-10% NAL of Mr Bryant's hearing loss is occupationally related. Mr Greig is also stating that the hearing in Mr Bryant's left ear was relatively normal in 1997 but what hearing loss then existed was probably caused by previous work-noise exposure. There has been no evidence of noise exposure since then. As I have explained to Mr Bryant, this means that, in terms of the law, the Corporation does not have the jurisdiction to provide a hearing aid to him at present, nor do I have proper jurisdiction to order that. Mr Bryant accepts that the law must be observed. All concerned regret that there cannot, presently, be ACC funding of a hearing aid which would, clearly, considerably provide much better enjoyment of life to Mr Bryant. [31] Accordingly, this appeal is hereby dismissed. Judge PF Barber District Court Judge, Wellington