Dayal v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012] NZACC 84 ACR 110/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN SHIWA DAYAL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 7 February 2012 Heard at Auckland) Appearances: Mr Dayal in Person Kirsty Berry for the Corporation Judgment: 19 March 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] On 16 December 2008 the Corporation declined Mr Dayal's claim for cover for hearing loss on account occupational noise. Mr Dayal took the Corporation on review but on 19 January 2010 the reviewer upheld the Corporation's decision. [2] There is no argument but that Mr Dayal suffers from a degree of hearing loss for the remediation of which hearing aids would be advantageous. The issue is whether Mr Dayal's hearing loss was caused by a work-related gradual process. SHIWA DAYAL V ACCIDENT COMPENSATION CORPORATION ACAA WN ACR 110/10 [9 March 2012] Background [3] Because of his then concern about hearing difficulties he was experiencing, Mr Dayal was referred for an audiology assessment in January 2006. The audiologist reported that he had a mid-to-high frequency sensorineural hearing loss bilaterally and said that efforts would be made to secure funding for him for hearing aids. [4] During 2006, Mr Dayal was fitted with hearing aids, but it was not until August 2008 that (through his then general practitioner) he lodged with the Corporation a claim for cover for hearing loss. The focus of that claim was on the fact that between 2001 and 2004 he had worked in a call centre using a headset. [5] Mr Dayal was referred by the Corporation to Mr Paul S Simcock who reported to the Corporation in December 2008. He noted that Mr Dayal had related that he first experienced hearing loss in 2001 and now had hearing difficulties at work (he was a tenancy manager and still is for the Housing Corporation) where he met other people; also that even his wife and children complained that he could not hear them. For him, one on one meetings were easier to cope with than groups. [6] Mr Simcock had the benefit of an audiogram from September 2008 performed at Dilworth Hearing on the same day that he examined Mr Dayal. As to his examination, he reported this: His external air canals, air drums and middle ears are normal, and tuning fork and voice testing indicated a moderate to severe bilateral mostly high frequency sensorineural hearing loss, partly compensated for by lip reading. [7] He noted that the audiological measuring of the hearing loss showed a slight deterioration compared with audiology in December 2002, but in his opinion: The amount of noise that Mr Dayal has been exposed to in the office, even wearing headphones for the last four years' is sufficient to cause only a minor degree of hearing loss, and the degree of hearing loss and its pattern shown on the audiogram is not consistent with hearing loss due to noise exposure, In fact, (see [4] above) the call centre work occupied Mr Dayal between 2001 and 2004. The pattern of the audiogram indicates Mr Dayal has a familial cochlear type of degeneration which is likely to continue. (Emphasis added) [8] Mr Simcock's conclusion (as just emphasised) that Mr Dayal's hearing loss was not occupational led the Corporation to advise Mr Dayal by letter of 16 December 2008 that his claim for cover could not be approved. [9] On 6 April 2009 Mr Dayal was seen by a Mr Zahoor Ahmed, described as an Otolaryngologist - Head and Neck Surgeon, When reporting that day to Mr Dayal's general practitioner, he advised as follows: Shiwa says that he has been experiencing hearing loss since 2002. He says it is getting worse, He was given hearing aids, which he has been wearing. Unfortunately, he has lost the left hearing aid and is using only the right one. His hearing aids were provided at the super clinic with his financial support and some help for moulds at super clinic. He says that he has to lip read to understand what people are saying. He feels that his hearing loss is because of the noise exposure. He says he was working from 2000 to 2004 in a Call Centre where he was using headsets and he was exposed to noise exposure there. He also says that there was also surrounding building work going on, which was both demolishing and reconstruction of the buildings and he feels that his hearing has got deteriorated there. He is presently working as a manager in Housing New Zealand. He says that there is no excessive noise there, Shiwa was born in Fiji and worked there as a bank teller and he says that he has no history of noise exposure in Fiji. He has no history of family hearing loss. He says that he has a sister who has normal hearing. He came to New Zealand in 2000. He has no history of diabetes, or high blood pressure. No history of any other medical problems and no history of previous ototoxic medications. He says he noticed hearing loss in 2002. He reckons that he had a hearing test done when he was given hearing aids, He has been wearing hearing aids since 2007." (Emphasis added) [10] Like Mr Simcock Mr Ahmed reported that the result of the physical examination of the ear canals, drums and middle ears was unremarkable. He went on to add that: On tuning fork test he has positive Rennie's tests on both sides and Weber's test is lateralised to left ear indicating more sensorineural hearing loss in right ear. His Romberg's test and Unterberger's tests are normal and his In fact, see [4] above, that appears to have been the case since 2006. vestibular tests are within normal limits. His previous audiogram has shown bilateral symmetrical sensorineural hearing loss. His Pure tone audiogram done in January 2006 has shown high frequency moderate hearing loss and this has remained unchanged when tested in Jan 2007. Hearing loss is symmetrical in both ears. [11] Under the heading "Impression" he said this; I think it is unlikely that Mr Shiwa Dayal's hearing is affected by noise exposure for the reasons that the Call Centre noise exposure is not like the other factory noises, which will generally cause noise induced hearing loss and he has worked there only a short period of time. In my opinion it is unlikely that this must have caused any hearing damage . While he has bilateral sensorineural hearing loss, the possibilities are it could be degenerative or some other noise exposure, which he has been previously exposed to. I think that he would need hearing aids. I have arranged for him to be reviewed at Manukau Super Clinic and I will try if he could have another hearing aid in his left ear and if it could be funded through either hospital or he could be helped through his work. I will bring him to Manukau Super Clinic for further hearing tests and for further management there. [12] Bay Audiology became involved after that, and Mr Dayal saw one of their audiologists, Lucy Cochrane, on 8 May 2009 for a complete audiological assessment. She then reported the following: Test Results Visual otoscopy revealed clear external auditory canals and apparently healthy tympanic membranes in both ears. Pure-tone audiometry revealed essentially no real hearing to 1 kHz steeply sloping to a moderately-severe sensorineural hearing loss bilaterally. Speech testing was consistent with the audiogram and revealed a significant improvement in speech discrimination at increased volume levels in both ears, Acoustic immittance audiometry showed a type A tympanogram indicative of normal middle ear pressure and compliance in both ears. Recommendations Today's results are consistent with a significant sloping sensorineural hearing loss bilaterally. As I mentioned, you may consider further investigation by an Ear Nose and Throat specialist regarding the cause of the See [22] below. hearing loss. I wish you luck with your claim with ACC and we would be happy to assist with the trial of hearing aids at any time. As will be seen, this report does not touch upon the issue of the reason for the hearing difficulties. [13] Mr Dayal's review application had got underway on 24 June 2009 but was not concluded until 24 December that year, Apparently what happened was that at the hearing on 24 June Mr Dayal told the reviewer that he had further information to support his claim which, however, he had not brought to the hearing. It turned out that he was referring to the Cochrane audiogram and the report from Mr Ahmed, as already set out above. [14] Upon receipt of those reports by the reviewer and the Corporation, the latter decided to go back to Mr Simcock, who after some delay, responded on 22 September 2009. [15] Speaking of the Cochrane report, Mr Simcock said that he found nothing in that requiring comment from him. He had picked up the obvious fact that Ms Cochrane did not comment on the cause of the hearing loss and he saw as appropriate her recommendation to Mr Dayal that he might consider further investigation by an Ear Nose and Throat specialist. [16] Mr Simcock had also been presented with some information (downloaded from the Wikipedia site) concerning sensorineural hearing loss, elements of which were highlighted or marked with an asterisk. These apparently comprised materials furnished by Mr Dayal. [17] However, as an expert in his field, Mr Simcock apparently saw no utility in specifically commenting on this material, Instead he went on to state that his 11 December 2008 view was unchanged, namely; That the amount of noise that Mr Dayal had been exposed to in the office wearing headphones is sufficient to cause only a minor degree of hearing loss, and it is impossible to quantify this amount. [18] He added that; Mr Dayal has had two audiograms, one done as part of his assessment for hearing loss on 23.9.08, and another one, done by Lucy Cochrane of Bay Audiology on 5.6.2009. There is no significant difference between the two audiograms with 5dB disparity between tests at some frequencies. The pattern of the audiograms does not indicate noise induced hearing loss, in particular the hearing loss at 30 to 40dB at frequencies below IkHz (hearing loss at these frequencies is almost never produced by noise damage) and the flat responses at all frequencies above IkHz, between 65 and 70dB. There is no characteristic maximum hearing loss at 3 to 6kHz, and this, together with the degree of hearing loss (65dB at 4kHz), was only seen in extreme cases of noise induced hearing loss. In summary, Mr Dayal's hearing loss is not consistent with noise induced hearing loss, and in my opinion the amount of hearing loss attributable to noise damage from wearing headphones is negligible compared with his NAL Scale Score hearing loss of 49,5%. (Emphasis added) Mr Dayal's submissions [19] Addressing me on the appeal hearing day Mr Dayal complained, as regards the medical evidence, of a "lack of certainty in a matter so important to him". In criticising the conclusions reached by the reviewer that the weight of medical opinion was that his hearing loss had not been caused by exposure to noise at work, he was anxious to see weight placed on the fruits of his worldwide web explorations concerning hearing loss issues. [20] He complained, so far as Mr Simcock's opinion was concerned, that he had 'not even touched him' whereas Mr Ahmed had. However, with all respect to Mr Dayal, I am bound to record that the two specialists each make clear that they conducted conventional physical examinations pertinent to the hearing loss issue at hand. [21] Mr Dayal sought to highlight that, at the time he had been working at the call centre, there had been building work going on all around - both demolition and reconstruction of nearby structures. But, as will have been seen from a reading of the report in question, he had related that to Mr Ahmed, the specialist to whom his own general practitioner had referred him for a second opinion. In other words, Mr Ahmed was clearly cognisant of that amongst other historical matters when he expressed the conclusions he did. [22] He also spoke of getting a clean sheet when he had his medical before starting at the call centre, which was his first job after arriving in New Zealand. All in all, it was obvious to me that Mr Dayal sincerely believed that his current and serious hearing difficulties were work-related. Discussion [23] As I have noted, Mr Ahmed was unable to offer specialist medical support for his claim of a causal nexus between his hearing loss and the call centre work. [24] In seeking to argue (as he did) that Mr Ahmed was actually supportive of his case, Mr Dayal must be taken to have overlooked that Mr Ahmed has quite firmly said that in his opinion it was unlikely that the call centre period of employment had caused any appreciable hearing damage. [25] The way in which Mr Ahmed specifically expressed his position here was to say this: In my opinion it is unlikely that this must have caused any hearing damage. (emphasis added) [26] It might well be argued that this was to ascribe the need for a higher than the civil standard of proof. But, when I look at Mr Ahmed's report as a whole, his position is clear: he sees no way, medically, that he can lend even arguable support to Mr Dayal's claim. [27] Here I come back to what Mr Dayal said to me earlier on 7 February when he conveyed his concern as to a lack of certainty in a matter so important to him. [28] It is perfectly understandable that Mr Dayal should misunderstand how matters of proof are dealt with in a situation such as the present. [29] It may be helpful to Mr Dayal - certainly I trust it will - if I endeavour to explain the approach by reference to an instructive judgment of the Court of Appeal, Accident Compensation Corporation v Ambros , where the Court said at [65]: The requirement for a plaintiff to prove causation on the balance of probabilities means that the plaintiff must show that the probability of causation is higher than 50%. However, Courts do not usually undertake accurate probabilistic calculations when evaluating whether causation has been proved. They proceed on their general impression of the sufficiency of the lay and scientific evidence to meet the required standard of proof ... the legal method looks to the presumptive inference which a sequence of events inspires in a person with commonsense ... [30] Later at [67] the Court said; The different methodology used under the legal method means that a Courts assessment of causation can differ from the expert opinion and Courts can infer causation in circumstances where experts cannot ... however, a Court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture. [31] Then at [69] the Court said: We agree that the question of causation is one for the Courts to decide and that it could in some cases be decided in favour of a plaintiff even where the medical evidence is only prepared to acknowledge a possible connection ... [32] But that observation must necessarily be balanced by the later (para [70] observation) that; It must, however, always be borne in mind that there must be a sufficient material pointing to proof of causation on the balance of probabilities for a Court to draw even a robust inference on causation. Risk of causation does not suffice. [33] These observations show that decision making in this area may involve commonsense (but necessarily evidence based) judgment calls. And whatever Mr Dayal might wish to the contrary there is no machinery available precisely to drive a definitive for all purposes outcome, In fact that the standard of proof is on the balance of probabilities is itself illustrative of that reality. [2007] NZCA 304 [34] I have dwelt on these issues because it was obvious to me from Mr Dayal's written submissions that he was troubled by some of the language in the reviewer's decision, and for that matter in the specialists' reports, on the count that it displayed to him a lack of 'the precision' which he saw to be an imperative. [35] I have looked at the matter entirely afresh. But having done so, I am obliged to rehearse that it has to be accepted that, as is in some respects the burden of the medical profession, judges are very often obliged to make decisions the rationale for which is incapable of expression with anything like "scientific" precision. Again I would simply point to the civil test of "balance of probabilities" as illustrative of that state of affairs. The evidence [36] The evidence before me takes the form on Mr Dayal's accounts of his history and the opinions (and premises identified therefor) of Mr Simcock and Mr Ahmed. Here I particularly note that I have not overlooked one hearing test result that Mr Dayal particularly wanted me to look at, a result from 16 July 2010 which he in some way saw to make his case, [37] Unfortunately for him, it simply does not do that. The test in question (one performed by Bay Audiology) illustrates no more on its own, or taken in the context of all of materials before me, than the state of Mr Dayal's hearing on that examination date. 38] Importantly for the purpose of my reaching a proper conclusion to this appeal, Mr Simcock has said that the pattern of the audiograms he has seen does not indicate noise induced hearing loss and he explained why that is so when writing on 22 September 2009. [39] Lying behind that is his report of 11 December 2008 in which he had said that "the pattern of the audiogram indicates Mr Dayal has a familial cochlear type of degeneration, which is likely to continue" See [18] above. [40] When Mr Ahmed reported on Mr Dayal's behalf on 6 April 2009 he was obviously aware of Mr Simcock's diagnosis. In fact he made reference to it in the very first paragraph of his report. [41] He did not refer to that diagnosis again except, perhaps, in the last sentence of this passage from later in his report: I think it is unlikely that Mr Shiwa Dayal's hearing is affected by noise exposure for the reasons that the call centre noise exposure is not like the other factory noises, which will generally cause noise induced hearing loss and he has worked there for only a short time. In my opinion it is unlikely that this must have caused any hearing damage. While he has bilateral sensorineural hearing loss, the possibilities are it could be degenerative or some other noise exposure, which he has previously been exposed to. [42] As to the very last possibility, there is no evidence of any other exposure. As to the reference to the "degenerative" possibility, I take him to simply express in tentative terms what Mr Simcock had earlier expressed distinctly more firmly, [43] The more crucial point is that my fresh consideration of the whole of the material put forward has not enabled me to identify any evidence to support the finding of a causal nexus between the call centre work and the hearing loss. On what is in front of me, the probabilities favour (if anything) a degenerative explanation for the loss. [44] Approaching the matter in terms of the advice so helpfully provided by the Court of Appeal in Ambros, I am unable to accede to Mr Dayal's submission that a case for recognising a causal connection is made out. [45] To the contrary, the collective wisdom of the two specialists would indicate that the answer surely lies in some other direction. [46] In short, and unfortunately for Mr Dayal, his case is not one where on the balance of probabilities the Court can reach the conclusion that he would like to see reached. Result [47] His appeal is dismissed. oferick Joyce OC" District Court Judge