Highlights of Noteworthy Decisions

Decision 785 19 R
23/01/2020
K. Jepson
  • Legal precedent (consistency)
  • Medical opinion (hearing loss) (flat audiometric curve)
  • Reconsideration (error of law)

Decision No. 785/19 denied the worker entitlement for hearing loss. The worker applied for reconsideration of Decision No. 785/19.

The worker relied on Decision No. 1300/16, which found that there was no typical pattern of hearing loss in circumstances where there is a combination of noise-induced hearing loss and presbycusis and, in particular, that the absence of the classic 4000 Hz notch does not necessarily mean that the pattern of hearing loss is inconsistent with noise-induced hearing loss.
The Vice-Chair noted that Decision No. 1300/16 was released well before Decision No. 785/19. Thus, the worker could have raised that decision in his arguments at the original hearing. The failure of the original vice-chair to consider Decision No. 1300/16, when it was not raised by a party, did not amount to a significant legal error.
The Tribunal's body of case law is very large. A vice-chair is obliged to apply well-accepted principles of law and policy, and to consider any specific arguments made and case law cited, but is not obliged to seek out and consider every previous case that might potentially have some relevance.
Decision No. 1300/16 has been discussed with approval in three subsequent Tribunal decisions. It was not a decision that contained such a fundamentally well-established interpretation of Board policy, or such broadly applicable legal principles, that the original vice-chair could be said to have ignored a clear and well-settled ling of legal authority by failing to consider it.
Even if the original vice-chair had considered Decision No. 1300/16, it was unlikely that the result of the decision would have changed, because the original decision was based not only on the lack of the classic notch at 4000 Hz but also on the asymmetry of the hearing loss and the lack of exposure evidence.
The application to reconsider was denied.