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Accident Compensation Cases

McTaggart v Accident Compensation Corporation (DC, 04/10/11)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the respondent's decision of 7 October 2010, whereby it determined that the appellant was not eligible to receive an Independence Allowance in respect of his work-related hearing loss, as the Whole Person Impairment Assessment of same identified a percentage of less than the 10% required under the Act. 
The respondent's decision was confirmed in a review decision dated 2 March 2011, and it is the case that consequent upon the filing of submissions in the appeal from that decision the parties have agreed that this appeal be determined “on the papers”
The Court has received written submissions from the appellant and from Ms Sarah Scott, Counsel for the Respondent. 
The background facts relevant to the issue in this appeal may be stated as follows: 
At the time the appellant made application for an Independence Allowance he was 78 years of age. 
The appellant's work history is that from the age of 16 years, from 1946 to 1965, he was employed in woollen mills in Scotland, and after emigrating to New Zealand he was employed at the Mosgiel Woollen Mills from 1965 to 1979. 
In 2004 the appellant sought cover for hearing loss contended to have been suffered by him consequent upon his exposure to noise in his employment at Mosgiel Woollen Mills. 
In July 2004 the appellant obtained the opinion of Mr Graham Titchener, Otolaryngologist, as to the extent of the hearing loss that could be attributed to his exposure to noise in the course of his employment in New Zealand. 
Mr Titchener's assessment identified a total percentage hearing loss of 34% which, after taking account of age related circumstances, identified a hearing loss of 27% total from his employment, both in New Zealand and in Scotland. 
Mr Titchener determined the split between New Zealand and the UK, with slightly more from New Zealand employment and he identified 14% hearing loss as arising from exposure in New Zealand and 13% from his exposure in the UK. 
The respondent therefore granted the appellant cover for work-related hearing loss based on that 14% assessment. 
Subsequent to the granting of cover, on 13 December 2004, the appellant applied for an independence allowance. 
The Independence Allowance assessment was carried out in February 2005 by Dr Barry Taylor and he applied the assessment which had been provided by Mr Titchener. 
After deducting the age-related hearing loss and by applying the appropriate charts in the AMA Guides, the assessment identified that the appellant's Whole Person Impairment due to occupational noise exposure in New Zealand was a Whole Person Impairment of 6%. 
It was on the basis of that assessment that the respondent declined to grant the appellant an independence allowance and that decision was confirmed at review by Review Decision dated 11 May 2005. 
On 3 December 2010, the appellant made a further application for an independence allowance, he providing a recent audiogram which showed a gradual deterioration of his hearing over time compared with that which had been done in December 2004. 
The respondent referred the appellant to Dr James Harman, a duly authorised assessor. 
Dr Harman used the figures identified in Mr Titchener's assessment and he too came to a figure of 6% Whole Person Impairment arising from work-related hearing loss in New Zealand. 
In his assessment Dr Harman stated, inter alia, as follows: 
“I have not used the most recent audiogram as Mr McTaggart's ongoing hearing loss since that time is not noise related. ”
Consequent upon Dr Harman's assessment the respondent issued its decision on 7 October 2010 again advising that the appellant was not eligible to receive an independence allowance. That decision was confirmed by Review Decision dated 2 March 2011. 
In his submissions the appellant referred to the audiology assessment carried out by Dr Michelle Quinn in August 2010, and where she noted that there had been a gradual deterioration of hearing over time since the last testing was done in December 2004. 
The appellant submitted that his further deterioration was not age related but due to an acceleration consequent upon the work related noise exposure which he had experienced earlier in his life. 
In that regard he provided a medical report from the Journal of Neuroscience of 2006, which referred to a study which had taken place in 2000, which suggested that subsequent hearing loss progression with age was exacerbated because of the original noise induced hearing loss. 
The appellant also asserted that the report from Mr Titchener was “untrue” as a letter from Mr Titchener of July 2010 gave a slightly greater final estimate of total loss, from 33% to 33.6%, reduced to 27.4% for work related loss. 
Ms Scott, Counsel for the Respondent, submitted that any deterioration of hearing since the 2004 assessment cannot be attributable to work-related exposure, and she referred to the publication from the American College of Occupational and Environmental Medicine, that further progression of hearing loss is not attributable to the hearing loss caused by noise exposure. 
Counsel submitted that any further hearing loss was age related and not able to be taken into account for assessment purposes. 
The procedure for an entitlement to an Independence Allowance is that contained in the Accident Insurance Act 1998, which although repealed in the main, the provisions relating to independence allowance remain as provided for in Section 377 of the Accident Compensation Act 2001. 
It is provided for in Clause 60 of Schedule 1 to the 1998 Act that the Assessor must apply the provisions of the AMA Guides for the purposes of identifying the percentage of impairment, and secondly, it is provided that such assessment must exclude any impairment that did not result from the personal injury for which cover was granted. In the case of this appellant it has been identified, not surprisingly for his age, that he has age related hearing impairment as well as a level of impairment that can be attributed to work related noise. 
It is the case that the appellant ceased to be engaged in employment which had a noise factor some considerable time before he sought to be assessed for an independence allowance. 
The assessment made by Mr Titchener, a specialist in this field, identified the level of hearing loss which could be attributable to noise induced causation from that which would have arisen naturally, and it is the case that there has been no evidence introduced which would establish that Mr Titchener's assessment was flawed. 
The fact that he amended his assessment by an extremely moderate percentage does not affect the validity of his assessment, and for the purposes of assessing for entitlement, there is no different consequence between the two figures. 
Because the appellant had ceased to be subjected to work related noise well prior to the first assessment, and there was no subsequent reintroduction of work related noise, I find it to be the correct situation as identified by Dr Harman, that the modest further hearing impairment has no relevance for the purposes of the work related percentage of impairment and I note that this is accepted as being the case by Dr Quinn, who carried out that further assessment and who stated in her letter to the appellant that the decrease in his hearing from when he first made his claim was not due to noise. 
If that position needed any further evidential qualification, then I find that it has been so in the paper from the American College of Occupational and Environmental Medicine, where it is stated: 
“Most scientific evidence indicates that previously noise exposed ears are not more sensitive to future noise exposure and that hearing loss due to noise does not progress (in excess of what would be expected from the addition of age related threshold shifts) once the exposure to noise is discontinued. ”
I consider that advice to be more acceptable than the report in the Journal of Neuroscience referred to by the appellant and which referred to a study made in 2000 which suggested that a hearing loss progression with age could be exacerbated from that experienced from previous noise exposure. 
I find it to be the case as a matter of law that until that suggestion were to be established as a medical certainty, it could not be a matter to be taken into account in the assessment of work related hearing loss. 
A final point that should be identified is the fact that when Dr Titchener made his assessment he was merely considering a percentage of hearing loss, and the percentage that he so ascribed to the appellant's work-place in New Zealand of 14% is only of hearing loss and that needs to be then put into the appropriate table of the AMA Guides to identify what that hearing loss percentage amounts to as a Whole Person Impairment, as it is only Whole Person Impairment loss of 10% or more which gives an entitlement to an Independence Allowance. 
From the evidence, I find that it is quite clear that although the appellant does have a measurable hearing loss consequent upon his New Zealand work-place experience, that hearing loss, when translated to Whole Person Impairment does not amount to 10% or more, and as such the respondent was correct to advise him that he did not qualify for an Independence Allowance in respect of that covered injury. 
For the foregoing reasons, therefore, this appeal is dismissed. 

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